Evidence record
DAC-IPAD Report
This DAC-IPAD report addresses reforming pretrial procedures and establishing uniform prosecution standards in military sexual assault cases.
Short Summary
The report is important because it recommends changes to Article 32 preliminary hearings and prosecution standards, including stronger treatment of no-probable-cause determinations and objective sufficiency of evidence before referral.
This is a strong public-record source for explaining that concerns about screening, charging, and pretrial procedures have been raised by an official advisory committee, not only by advocates or families.
Key Details
- Source / author: Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces
- Date: June 2023
- Document type: Report
- Topic: Article 32; prosecution standards; pretrial procedures; due process
- Service branch: Joint / DoD
Key Points
- DAC-IPAD proposes that when an Article 32 preliminary hearing officer finds no probable cause for an offense, that charge cannot be referred to a general court-martial unless the government later presents newly discovered or previously unavailable evidence.
- The report proposes uniform disposition guidance requiring probable cause for every referred charge and a belief that admissible evidence will probably be sufficient to obtain and sustain a conviction.
- The proposed guidance tells military decision makers to evaluate evidence objectively through the lens of an unbiased factfinder.
- The report frames charging standards and Article 32 screening as official military justice reform issues, not merely advocacy complaints.
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Defense Advisory Committee on
Investigation, Prosecution, and Defense
of Sexual Assault in the Armed Forces
Report on Reforming Pretrial Procedures and
Establishing Uniform Prosecution Standards:
Recommendations for Article 32,
UCMJ, and the Secretary of Defense’s
Disposition Guidance in Appendix 2.1,
Manual for Courts-Martial
June 2023
Defense Advisory Committee
CHAIR
The Honorable Karla N. Smith
MEMBERS
Major General Marcia M. Anderson, U.S. Army, Retired
Ms. Martha S. Bashford
Mr. William S. Cassara
Ms. Margaret A. Garvin
Ms. Suzanne B. Goldberg
The Honorable Paul W. Grimm
Mr. A. J. Kramer
Ms. Jennifer Gentile Long
Dr. Jenifer Markowitz
The Honorable Jennifer M. O’Connor
Brigadier General James R. Schwenk, U.S. Marine Corps, Retired
Dr. Cassia C. Spohn
Ms. Meghan A. Tokash
The Honorable Reggie B. Walton
STAFF DIRECTOR
Colonel Jeff A. Bovarnick, Judge Advocate General’s Corps, U.S. Army
DEPUTY STAFF DIRECTOR
Ms. Julie K. Carson
CHIEF OF STAFF
Mr. Dale L. Trexler
DESIGNATED FEDERAL OFFICER
Mr. Dwight H. Sullivan
Defense Advisory Committee on
Investigation, Prosecution, and
Defense of Sexual Assault
in the Armed Forces
Report on Reforming Pretrial Procedures and
Establishing Uniform Prosecution Standards:
Recommendations for Article 32, UCMJ, and the
Secretary of Defense’s Disposition Guidance in
Appendix 2.1, Manual for Courts-Martial
June 2023
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
THE DEFENSE ADVISORY COMMITTEE ON
INVESTIGATION, PROSECUTION, AND DEFENSE OF
SEXUAL ASSAULT IN THE ARMED FORCES
June 9, 2023
The Honorable Jack Reed The Honorable Roger Wicker
Chairman Ranking Member
Committee on Armed Services Committee on Armed Services
United States Senate United States Senate
Washington, DC 20510 Washington, DC 20510
The Honorable Mike Rogers The Honorable Adam Smith
Chairman Ranking Member
Committee on Armed Services Committee on Armed Services
U.S. House of Representatives U.S. House of Representatives
Washington, DC 20515 Washington, DC 20515
The Honorable Lloyd J. Austin III
Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301
Dear Chairs, Ranking Members, and Mr. Secretary:
We are pleased to provide you with our report Reforming Pretrial Procedures and
Establishing Uniform Prosecution Standards: Recommendations for Article 32, UCMJ, and the
Secretary of Defense’s Disposition Guidance in Appendix 2.1, MCM in accordance with section
546 of the National Defense Authorization Act for Fiscal Year 2015 (Public Law 113-291), as
amended. This report and our recommendations are the culmination of a five-year study of military
sexual assault cases. The DAC-IPAD finds that serious problems persist in the screening, charging,
and pretrial phases of the court-martial process. As highlighted below, an immediate, targeted
policy action (revising Appendix 2.1 of the MCM) and one legislative remedy (amending Article
32, UCMJ) will ameliorate these problems and contribute to increased trust in the military justice
process.
Drawing on its collective expertise, the DAC-IPAD concludes that the investigation,
prosecution, and defense of sexual assault cases would be improved with two procedural changes
and one training requirement that benefit the entire military justice enterprise. The
recommendations are:
(1) Congress amend Article 32 to provide that a determination by the preliminary
hearing officer that a specification lacks probable cause precludes referral of that
specification to a general court-martial, subject to the government’s limited
opportunity for reconsideration. The Article 32 preliminary hearing officer’s no-
probable-cause determination is without prejudice to the government to bring new
charges;
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
(2) The Secretary of Defense revise Appendix 2.1, Manual for Courts-Martial, to
establish uniform prosecution standards aligned with the prosecution principles
contained in the United States Justice Manual. The prosecution standards should
provide that special trial counsel refer charges to a court-martial, and judge
advocates recommend that a convening authority refer charges to a court-martial,
only if they believe that the Service member’s conduct constitutes an offense under
the Uniform Code of Military Justice (UCMJ), and that the admissible evidence
will probably be sufficient to obtain and sustain a conviction when viewed
objectively by an unbiased factfinder; and
(3) The Secretary of Defense require all special trial counsel and judge advocates
who advise convening authorities to receive training on the newly established
prosecution standards in Appendix 2.1 of the Manual for Courts-Martial. The
training shall emphasize the principle that referral is appropriate only if these
special trial counsel and advisors believe that the Service member’s conduct
constitutes an offense under the UCMJ, and that the admissible evidence will
probably be sufficient to obtain and sustain a conviction when viewed objectively
by an unbiased factfinder.
These are not radical ideas. Rather, they are principles familiar to every prosecutor—both
military and civilian—practicing across the United States and its territories. These targeted reforms
are necessary to enhance uniformity, reliability, and consistency in military pretrial procedures,
and to establish more rigorous and uniform prosecution standards. Moreover, these
recommendations achieve parity with the United States Justice Manual as contemplated by Article
36, UCMJ.1 The DAC-IPAD’s recommendations, which reflect years of data-driven work on these
issues, are critical not only for the independent prosecutorial Offices of the Special Trial Counsel
(OSTCs) which will be fully operational on July 1, 2023, but also for the military justice system
overall. We recently shared our findings and recommendations with the Military Justice Review
Panel during their April meeting to avoid creating two separate systems of justice — one system
for covered and related offenses that fall under the jurisdiction of the new OSTCs and another
system for all other offenses, which remain under the authority of military commanders. Adopting
these recommendations across the entire military justice system will restore the broken trust
identified by the Independent Review Commission’s July 1, 2021, report.
While we know there has been much change in the military justice landscape over the last
decade, these recommendations are designed for minimal impact on the workforce, restoring trust
in justice-seeking processes, and are specifically designed to enhance the success of the OSTCs at
the rollout of the first-ever independent military prosecutorial offices. The members of the DAC-
IPAD would like to express our sincere gratitude and appreciation for the opportunity to make use
of our collective experience and expertise in this field to develop recommendations for improving
the military’s response to sexual misconduct within its ranks.
1
Article 36, UCMJ, provides in relevant part: “Pretrial, trial, and post-trial procedures, including modes of proof, for
cases arising under this chapter triable in courts-martial . . . may be prescribed by the President by regulations which
shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in
the trial of criminal cases in the United States district courts[.]”
2
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Respectfully submitted,
______________________________
Karla N. Smith, Chair
______________________________ ______________________________
Marcia M. Anderson Martha S. Bashford
______________________________ ______________________________
William S. Cassara Margaret A. Garvin
______________________________ ______________________________
Suzanne B. Goldberg Paul W. Grimm
______________________________ ______________________________
A. J. Kramer Jennifer Gentile Long
______________________________ ______________________________
Jenifer Markowitz Jennifer M. O’Connor
______________________________ ______________________________
James R. Schwenk Cassia C. Spohn
______________________________ ______________________________
Meghan A. Tokash Reggie B. Walton
2
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
viii
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
CONTENTS
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I. Introduction, Recommendations, and Methodology . . . . . . . . . . . . . . . 1
II. Background and Recent Developments . . . . . . . . . . . . . . . . . . . 6
III. Reforming Article 32 Preliminary Hearings . . . . . . . . . . . . . . . . . 14
IV. Establishing Uniform Prosecution Standards in Appendix 2.1,
Manual for Courts-Martial, and Training the Services . . . . . . . . . . . . . 22
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Appendixes
A. DoD General Counsel Tasking Memo to Evaluate OSTC A-1
B. Independent Review Commission Recommendations 1.7 a-f (IRC Report Excerpt) B-1
C. National Defense Authorization Act for Fiscal Year 2022, Excerpt with Joint Explanatory Statement C-1
D. Request for Information and Service Narrative Responses D-1
E. Comprehensive Courts-Martial Pretrial Processing Data for Fiscal Years 2014 through 2021 E-1
F. DAC-IPAD Proposed Amendment for Article 32, UCMJ F-1
G. DAC-IPAD Proposal for Appendix 2.1, MCM G-1
H. DAC-IPAD Proposal for Training H-1
I. History of Articles 32, 33, and 34, UCMJ I-1
J. Excerpt from Principles of Federal Prosecution, Justice Manual 9-27.001–9-27.300 J-1
K. DAC-IPAD Professional Staff K-1
L. Acronyms and Abbreviations L-1
M. Sources Consulted M-1
ix
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
x
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
EXECUTIVE SUMMARY
The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces’
(DAC-IPAD’s) multiyear study of military sexual assault cases found serious problems in the screening, charging, and
referral phases of the court-martial process. Drawing on its collective expertise, this Committee concludes that the
investigation, prosecution, and defense of sexual misconduct would be improved with two procedural changes and one
training requirement that benefit the entire military justice enterprise. The DAC-IPAD recommends:
(1) Congress amend Article 32 to provide that a determination by the preliminary hearing officer that
a specification lacks probable cause precludes referral of that specification to a general court-martial,
subject to the government’s limited opportunity for reconsideration. The Article 32 preliminary hearing
officer’s no-probable-cause determination is without prejudice to the government to bring new charges.
(2) The Secretary of Defense revise Appendix 2.1, Manual for Courts-Martial, to establish uniform
prosecution standards aligned with the prosecution principles contained in the United States Justice
Manual. The prosecution standards should provide that special trial counsel refer charges to a court-
martial, and judge advocates recommend that a convening authority refer charges to a court-martial,
only if they believe that the Service member’s conduct constitutes an offense under the Uniform Code
of Military Justice (UCMJ), and that the admissible evidence will probably be sufficient to obtain and
sustain a conviction when viewed objectively by an unbiased factfinder.
(3) The Secretary of Defense require all special trial counsel and judge advocates who advise convening
authorities to receive training on the newly established prosecution standards in Appendix 2.1 of the
Manual for Courts-Martial. The training shall emphasize the principle that referral is appropriate only if
these special trial counsel and advisors believe that the Service member’s conduct constitutes an offense
under the UCMJ, and that the admissible evidence will probably be sufficient to obtain and sustain a
conviction when viewed objectively by an unbiased factfinder.
These are not radical ideas. Rather, they are principles familiar to every prosecutor—both military and civilian—
practicing across the United States and its territories. These targeted reforms are necessary to enhance uniformity,
reliability, and consistency in military pretrial procedures, and to establish more rigorous and uniform prosecution
standards. The DAC-IPAD’s recommendations, which reflect years of data-driven work on these issues, are critical not
only for the independent prosecutorial Offices of the Special Trial Counsel (OSTCs) but also for the military justice
system overall.
Beginning in December 2023, special trial counsel within each OSTC will wield profound prosecutorial authority once
held by military commanders for certain covered and related offenses.1 Data gathered from the past several years indicate
that special trial counsel will prosecute the majority of cases tried at general courts-martial.2 Accordingly, the DAC-
IPAD’s recommendations should apply uniformly across the military justice system to avoid creating two separate systems
1 10 U.S.C. § 824a (Art. 24a, UCMJ). The covered offenses over which special trial counsel will exercise authority fall under the following punitive
articles in the UCMJ: Art. 117a (wrongful broadcast or distribution of intimate visual images), Art. 118 (murder), Art. 119 (manslaughter), Art. 119a
(death or injury of an unborn child), Art. 120 (rape and sexual assault generally), Art. 120a (mails: deposit of obscene matter), Art. 120b (rape and
sexual assault of a child), Art. 120c (other sexual misconduct), Art. 125 (kidnapping), Art. 125b (domestic violence), Art. 130 (stalking), Art. 132
(retaliation), Art. 134 (child pornography), Art. 134 (sexual harassment).
2 See Appendix E, Comprehensive Courts-Martial Pretrial Processing Data for Fiscal Years 2014 through 2021 [Pretrial Processing Data] for data
indicating that the majority of preferred (or arraigned) cases will involve one or more of the 14 covered offenses.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
of military justice—one system for covered and related offenses that fall under the jurisdiction of the new OSTCs and
another system for all other offenses, which remain under the authority of military commanders.
Section I of this report summarizes the DAC-IPAD’s multiyear study of penetrative adult sexual assault cases and
highlights the problems in the screening, charging, and referral phases of sexual assault prosecutions in the military.
Section II explains the statutory and regulatory authorities governing pretrial processes in the military, with a focus on
the interplay of Articles 32, 33, and 34, UCMJ. Section II also addresses how civilian practice and independent advisory
groups have informed the DAC-IPAD’s recommendations. Section III describes the need to strengthen Article 32
preliminary hearing procedures to prevent referral of charges for which the evidence does not establish probable cause.
Section IV concludes that uniform prosecution standards should be established in Appendix 2.1 of the Manual for
Courts-Martial. Proposed new text for Appendix 2.1 is included at Appendix G of this report. Prosecutors and convening
authorities should receive training on the uniform prosecution standard. A proposed training guide is included at
Appendix H of this report. Taken together, these changes should promote the reasoned exercise of prosecutorial authority
and contribute to the fair, evenhanded administration of the UCMJ.
ii
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
RECOMMENDATIONS
DAC-IPAD Recommendation 48a: Amend Article 32 to provide that a preliminary hearing officer’s determination
of no probable cause precludes referral of the affected specification(s) to a general court-martial—subject to
reconsideration as described in Recommendation 48b—without prejudice to the government to prefer new charges.
DAC-IPAD Recommendation 48b: Amend Article 32 and Rule for Courts-Martial 405 to permit reconsideration
of a preliminary hearing officer’s no-probable-cause determination upon the presentation of newly discovered
evidence, or evidence that, in the exercise of due diligence, could not reasonably have been obtained before the
original hearing, subject to the following:
1. Trial counsel, within 10 days of receiving the preliminary hearing officer’s report, petitions the preliminary
hearing officer to reopen the Article 32 preliminary hearing stating the nature of the newly discovered evidence
and the reason it was not previously presented. After 10 days, a petition may be made only for good cause.
2. The preliminary hearing officer shall reconsider their previous no-probable-cause determination one time upon
reopening the Article 32 preliminary hearing to receive the evidence as described above. After reconsideration,
the preliminary hearing officer’s determination as to whether probable cause exists is final, but is without
prejudice to the government to prefer new charges.
DAC-IPAD Recommendation 49: The Secretary of Defense revise Appendix 2.1, Manual for Courts-Martial,
to align with the prosecution principles contained in official guidance of the United States Attorney General with
respect to disposition of federal criminal cases. These revisions should provide that special trial counsel refer charges
to a court-martial, and judge advocates recommend that a convening authority refer charges to a court-martial, only
if they believe that the Service member’s conduct constitutes an offense under the UCMJ, and that the admissible
evidence will probably be sufficient to obtain and sustain a conviction when viewed objectively by an unbiased
factfinder.
DAC-IPAD Recommendation 50: The Secretary of Defense require all special trial counsel and judge advocates
who advise convening authorities to receive training on the newly established prosecution standards in Appendix
2.1 of the Manual for Courts-Martial. The training shall emphasize the principle that referral is appropriate only if
these special trial counsel and advisors believe that the Service member’s conduct constitutes an offense under the
UCMJ, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction when viewed
objectively by an unbiased factfinder.
iii
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
I. INTRODUCTION, RECOMMENDATIONS, AND
METHODOLOGY
Introduction
The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the Armed Forces,
to promote efficiency and effectiveness in the military establishment, and to thereby strengthen the national security of
the United States.3 Sexual assault cases in the military often amplify possible tension between a lawyer’s responsibility to
safeguard procedural justice and a commander’s need to swiftly instill good order and discipline. To address these and
other issues, Congress has amended the Uniform Code of Military Justice multiple times over the past 10 years. Many of
these changes sought to improve the military’s response to rape, sexual assault, and other interpersonal violent crime.
The 2021 study by the Independent Review Commission on Sexual Assault in the Military (IRC) expressed concern that
despite these statutory changes, Service members do not trust the military justice system.4 This mistrust is due in part
to the manner in which sexual assault cases are handled prior to trial—including that many military commanders, on
the advice of their staff judge advocates, send cases to trial without regard for the judicial result.5 In response, the IRC
recommended a thorough evaluation of the military’s pretrial procedures laid out in Articles 32 and 34, UCMJ, with a
view toward reforms that would increase uniformity, reliability, and consistency in the military justice system.6
On the basis of its multiyear study of military sexual assault cases, the DAC-IPAD finds serious problems in the
screening, charging, and referral phases of sexual assault prosecutions that may contribute to the lack of trust noted by the
IRC.7 With the advent of independent special trial counsel, both judge advocates and commanders will possess authority
to make disposition decisions. Across this new military justice landscape, the pretrial process needs to be enhanced so that
these decision makers can ensure that the interests of justice have equal footing with the maintenance of good order and
discipline.
3 Manual for Courts-Martial, United States (2019 ed.) [2019 MCM], available at https://loc.gov/rr/frd/Military_Law/pdf/MCM-2019.pdf; see also
Memorandum from Chairman of the Joint Chiefs of Staff, General Martin E. Dempsey, to Secretary of Defense Chuck Hagel, Requesting a Review of
the Uniform Code of Military Justice (Aug. 5, 2013); Report of the military justice review group, Part I: UCMJ Recommendations
Appendix A 1261 [MJRG Report], available at https://jsc.defense.gov/Portals/99/MJRG%20Part%201.pdf.
4 On February 26, 2021, Secretary of Defense Lloyd James Austin III established the 90-Day Independent Review Commission (IRC) on Sexual Assault
in the Military. The IRC, chaired by Lynn Rosenthal, was charged with conducting “an independent, impartial assessment” of the military’s current
treatment of sexual assault and sexual harassment.” Hard Truths and the Duty to Change: Recommendations from the Independent Review
Commission on Sexual Assault in the Military 52 (July 2021) [IRC Report], available at https://media.defense.gov/2021/Jul/02/2002755437/-
1/-1/0/IRC-FULL-REPORT-FINAL-1923-7-1-21.PDF/IRC-FULL-REPORT-FINAL-1923-7-1-21.PDF; see also Appendix B, Independent Review
Commission Recommendations 1.7a–f [IRC Report Excerpt].
5 IRC Report, supra note 4, at 52.
6 On this issue, the IRC concluded: “Many commanders sincerely seek to ‘send a message’ of zero tolerance for sexual assault and sexual harassment but
do so in reverse: rather than taking preventive measures to stop these corrosive behaviors from happening in the first place, they have misguidedly used
their disposition authority to send cases to courts-martial that a specialized prosecutor knows have little chance of obtaining and sustaining a conviction.
In support of this, the IRC heard from individuals and groups of commanders of all levels who believe forwarding cases with insufficient evidence to
obtain and sustain a conviction—regardless of outcome—sends a strong discipline message. However, the IRC also heard that the practice of referring
a case to trial to ‘send a message,’ but ends in an acquittal harms both victims and accused. Moreover, this philosophy and the associated disappointing
trial outcomes are anathema to American concepts of justice and erode public confidence in military justice.” Id. at 11.
7 The DAC-IPAD began its study of pretrial issues in 2018 and, after its reconstitution in April 2022, completed the data collection and analysis that
culminated in this comprehensive report. See Memorandum from Secretary of Defense to Senior Pentagon Leadership Regarding Department of
Defense Advisory Committees – Zero-Based Review (Jan. 30, 2021). The Secretary directed this review to align Department of Defense (DoD) advisory
committee efforts with the Department’s most pressing strategic priorities.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Recommendations
Our collective expertise leads us to conclude that the investigation, prosecution, and defense of sexual misconduct
offenses will improve with two procedural changes and a training requirement that benefit the entire military justice
system. Accordingly, the DAC-IPAD recommends:
(1) Congress amend Article 32 to provide that a determination by the preliminary hearing officer that
a specification lacks probable cause precludes referral of that specification to a general court-martial,
subject to the government’s limited opportunity for reconsideration. The Article 32 preliminary hearing
officer’s no-probable-cause determination is without prejudice to the government to bring new charges.
(2) The Secretary of Defense revise Appendix 2.1, Manual for Courts-Martial, to establish uniform
prosecution standards aligned with the prosecution principles contained in the United States Justice
Manual. The prosecution standards should provide that special trial counsel refer charges to a court-
martial, and judge advocates recommend that a convening authority refer charges to a court-martial,
only if they believe that the Service member’s conduct constitutes an offense under the Uniform Code
of Military Justice (UCMJ), and that the admissible evidence will probably be sufficient to obtain and
sustain a conviction when viewed objectively by an unbiased factfinder.
(3) The Secretary of Defense require all special trial counsel and judge advocates who advise convening
authorities to receive training on the newly established prosecution standards in Appendix 2.1 of the
Manual for Courts-Martial. The training shall emphasize the principle that referral is appropriate only if
these special trial counsel and advisors believe that the Service member’s conduct constitutes an offense
under the UCMJ, and that the admissible evidence will probably be sufficient to obtain and sustain a
conviction when viewed objectively by an unbiased factfinder.
Methodology
From 2018 to 2023, the DAC-IPAD studied the pretrial processing of military sexual assault cases. The DAC-IPAD
engaged with stakeholders both inside and outside the Department of Defense to discuss the potential impacts of
reforming pretrial procedures and establishing uniform prosecution standards on victims, defendants, commands, and the
military justice system. This report reflects the DAC-IPAD’s analysis of information received from the following groups:
• The Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps
• General Counsels for each Military Department within the Department of Defense
• Lead special trial counsel within each Military Department
• Criminal law/military justice policy chiefs
• Trial defense services organization chiefs
• Special victims’ counsel and victims’ legal counsel program managers
• Staff judge advocates
• Former military judges
• Military justice practitioners who have served as preliminary hearing officers
• Advocacy groups: Protect Our Defenders, Survivors United, and Save Our Heroes
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RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
Committee members also considered pretrial practice and prosecution standards in the federal district courts and state
courts. Members consulted with civilian practitioners with significant experience as prosecutors, defense counsel, or
victim’s counsel (or advocates) in federal and state criminal proceedings involving sexual offense charges.8 Federal civilian
criminal procedure and practice are influential in the DAC-IPAD’s analysis because Article 36, UCMJ, provides in
relevant part: “Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter
triable in courts-martial . . . may be prescribed by the President by regulations which shall, so far as he considers
practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in
the United States district courts[.]”9 Finally, the DAC-IPAD reviewed reports from other independent advisory groups
that have studied similar issues.10
In addition, the DAC-IPAD conducted extensive data analyses: (1) the DAC-IPAD reviewed source documents for
thousands of adult-victim penetrative sexual offense prosecutions from all Military Services and published detailed case
adjudication data in November 2019,11 and (2) the DAC-IPAD staff reviewed more than 3,000 pretrial documents for
penetrative sex offense cases involving adult victims completed in fiscal years (FYs) 2014 to 2021.12 The DAC-IPAD’s
analyses from these studies produced annual conviction, acquittal, and dismissal rates for adult-victim penetrative sexual
offense charges, and also explained how these sexual offense charges were screened and sent to a general court-martial or
other disposition.
The purpose of the second study, noted above, was to evaluate the efficacy of the Article 32 preliminary hearing. The
DAC-IPAD observed the pretrial process for screening charges by collecting information directly from preliminary
hearing officers’ reports, the pretrial advice, and the statement of trial results for cases resolved from FY14 through FY21.
The DAC-IPAD ascertained whether the preliminary hearing officer found that one or more adult-victim penetrative
sexual offenses lacked probable cause and identified the resolution of the charge(s): for example, whether the charges
found lacking probable cause at the Article 32 were dismissed prior to trial or tried to verdict. Notably, in the process
of determining how often preliminary hearing officers found that a distinct offense was not supported by probable
cause, cases in which the preliminary hearing officer found probable cause under one legal theory but not another were
disregarded. For example, if the accused was charged with the same offense under two or more alternative theories
of liability (such as sexual assault by causing bodily harm and sexual assault when the alleged victim was incapable of
consent), and the preliminary hearing officer found probable cause for just one theory of liability but not the other(s), the
methodology counted that offense as one supported by probable cause.
In FY21, the DAC-IPAD undertook an expanded review of all cases involving any offense under the UCMJ—that is,
not just sexual offenses—in which a preliminary hearing was held or waived.13 The FY21 case review enabled the staff to
compare trends in penetrative sexual offense cases with trends in all other types of cases tried under the UCMJ. Moreover,
8 The DAC-IPAD members and staff conducted more than 20 interviews with civilian practitioners. Interview summaries are on file with the DAC-IPAD
staff.
9 10 U.S.C. § 836 (Art. 36, UCMJ).
10 Those DoD advisory committees are the Response Systems to Adult Sexual Assault Crimes Panel (RSP), the Judicial Proceedings Since Fiscal Year 2012
Amendments Panel (JPP), and the Independent Review Commission on Sexual Assault in the Military (IRC). Information on these groups can
be found at https://dacipad.whs.mil/reading.
11 Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, Court-Martial
Adjudication Data Report (Nov. 2019); all DAC-IPAD reports cited in this report are available at https://dacipad.whs.mil.
12 See Appendix E, Pretrial Processing Data. The DAC-IPAD published a subset of this comprehensive review of Article 32 documents covering data from
FY17 to FY18 in the Fourth Annual Report, released in March 2020.
13 The Committee received trial documents for 1,797 cases completed in FY21.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
the expanded review provided context for two additional aspects of Article 32 preliminary hearings: (1) the sufficiency of
the evidence presented at the hearing and (2) the depth of analysis conveyed in preliminary hearing officer reports.
The following statistics highlight the most significant findings in the DAC-IPAD’s comprehensive study of these pretrial
issues. Figure 1 illustrates the outcomes for penetrative sexual offense charges referred to a general court-martial. The
outcomes show persistently low rates of conviction for these offenses and reveal problems with the current pretrial
process.
FIGURE 1. OUTCOMES FOR PENETRATIVE OFFENSE CHARGES REFERRED TO COURT-MARTIAL (FY15 – FY18)
Convicted of Convicted of Convicted of Acquitted of
Penetrative Offense Contact Offense Non-Sex Offense All Charges
FY 2018
81 12 87 107
(28.2%) (4.2%) (30.3%) (37.3%)
FY 2017
103 17 105 100
(31.7%) (5.2%) (32.3%) (30.8%)
FY 2016
106 24 105 142
(28.1%) (6.4%) (27.9%) (37.7%)
FY 2015
147 13 123 116
(36.8%) (3.3%) (30.8%) (29.1%)
[Source: DAC-IPAD Court-Martial Adjudication Data Report (November 2019), p. 25, Figure 23.]
The percentage of cases in FY14 to FY21 involving an adult-victim penetrative sexual offense in which the preliminary
hearing officer found no probable cause but the convening authority nonetheless referred the case to a general court-
martial varied across the Military Services:14
Army Navy Marine Corps Air Force Coast Guard
66% 35% 32% 28% 44%
Of such cases in which the convening authority referred the offense to a general court-martial despite the preliminary
hearing officer’s finding of no probable cause, the overwhelming majority resulted in a dismissal or a finding of not guilty
on the penetrative sexual offense charge:15
Military Services dismissed not guilty guilty mixed findings unknown
Overall: 103 90 15 7 1
14 See Appendix E, Pretrial Processing Data, at Table 4.
15 See id. at Table 5. These 216 results reflect only those adult-victim penetrative sexual offense cases from FY14–FY21 with an Article 32 preliminary
hearing or investigation.
4
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
On average, 41% of sexual offense cases in the military are sent to trial after a preliminary hearing officer has found
no probable cause.16 Yet from FY19 to FY21, only 1 Service member—of 13 whose cases were tried to verdict—was
convicted of a penetrative sexual offense against an adult victim after a no-probable-cause determination by a preliminary
hearing officer.17
In 2020, the DAC-IPAD concluded its three-year review of almost 2,000 investigative case files involving reports of
adult-victim penetrative sexual offenses that reached a final disposition in FY17.18 Members of the DAC-IPAD’s Case
Review Subcommittee made qualitative assessments as to whether the evidence contained in the investigative file and
associated courts-martial records established probable cause and whether they believed there was sufficient admissible
evidence for a conviction.
The Committee’s study concluded that there is a systemic problem with the referral of penetrative sexual offense charges
to court-martial when there is not sufficient admissible evidence to obtain and sustain a conviction on the charged
offense. In 31% of cases that were tried to verdict on a penetrative sexual offense charge, the evidence in the materials
reviewed did not meet the sufficiency of the evidence threshold. The government obtained a conviction on the penetrative
sexual offense in only 3% (2 out of 73) of these cases, one of which was later overturned on appeal because the evidence
was factually insufficient.19 On the basis of its analysis, the DAC-IPAD determined that probable cause was not an
adequate standard for referring a case to trial.20 The DAC-IPAD observed that sending a case to court-martial in the
absence of sufficient admissible evidence to obtain and sustain a conviction has significant negative implications for the
accused, the victim, and the military justice process. Accordingly, the DAC-IPAD recommended that Congress amend
Article 34 so that a convening authority may not refer a charge to court-martial unless the staff judge advocate advises
them in writing that there is sufficient admissible evidence to obtain and sustain a conviction on the charged offenses.21
In summary, the DAC-IPAD’s data analysis and exhaustive review of source documents for sexual assault offenses
prosecuted by the military contextualize the observations of judge advocates shared with the DAC-IPAD, as well as the
concerns of other independent advisory groups. These data illuminate patterns across the entire military justice system,
including the inflection points that help explain case attrition and case outcomes. Importantly, the DAC-IPAD’s data
and case reviews confirm the IRC’s perception that more often than not, courts-martial involving the most serious sexual
offense charges end in dismissal or acquittal, a pattern that erodes trust in the military justice system.
16 See id. at Table 4.
17 See id. at Table 5.
18 Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, Report on
Investigative Case File Reviews for Military Adult Penetrative Sexual Offense Cases Closed in Fiscal Year 2017 1 (Oct. 2020) [DAC-
IPAD Report on Investigative Case File Reviews].
19 Id. at 13. The government obtained a conviction on the penetrative sexual offense in 2 out of 73 of these cases, one of which was later overturned on
appeal because the evidence was factually insufficient.
20 Id. at 14. Finding 101: “The requirements and practical application of Articles 32 and 34, UCMJ, and their associated Rules for Courts-Martial did not
prevent referral and trial by general court-martial of adult penetrative sexual offense charges in the absence of sufficient admissible evidence to obtain
and sustain a conviction, to the great detriment of the accused, the victim, and the military justice system.”
21 Id. at 16 (DAC-IPAD Recommendation 32).
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
II. BACKGROUND AND RECENT DEVELOPMENTS
This report focuses on the current operation of the military justice system and the role of the military commander in the
prosecution of criminal offenses. However, beginning this year, each Military Department will establish an independent
office of special prosecutors—known as special trial counsel—with authority to prosecute courts-martial involving sexual
offenses. Therefore, to avoid creating separate systems of justice for cases referred by convening authorities (military
commanders) and cases referred by special trial counsel (military lawyers), the DAC-IPAD recommends applying these
proposed reforms across the entire military justice system. This report and recommendations serve two critical, timely
functions: (1) to inform the Offices of Special Trial Counsel on best practices for the reasoned exercise of prosecutorial
discretion and (2) to promote system-wide consistency of prosecutorial principles.
In support of these goals, the DAC-IPAD has shared the background, supporting data, and recommendations contained
in this report with the Military Justice Review Panel (MJRP). The MJRP’s statutory mission is to conduct independent,
periodic reviews and assessments of the operation of the UCMJ.22 The DAC-IPAD is confident the MJRP will consider
the DAC-IPAD’s findings and recommendations when making similar or additional recommendations that affect the
entire military justice system.
Current Pretrial Practices and Disposition Guidance in the Military Justice System
In the military justice system, any Service member subject to the UCMJ may accuse another of a criminal violation.
Charges must be forwarded to the accused’s commander—and soon, in the case of a “covered offense,” to the special
trial counsel—for review and decision as to disposition.23 A preliminary hearing under Article 32, UCMJ, must be held
before offenses may be tried at a general court-martial, unless it is waived by an accused.24 Under previous iterations of
the law, an Article 32 hearing was a “thorough and impartial investigation.”25 However, after public outcry over alleged
injustices that took place during an Article 32 hearing at the U.S. Naval Academy,26 Congress completely revised Article
32, limiting the hearing’s focus to
(1) Determining whether there is probable cause to believe an offense has been committed and the
accused committed the offense.
(2) Determining whether the convening authority has court-martial jurisdiction over the offense and the
accused.
(3) Considering the form of charges.
(4) Recommending the disposition that should be made of the case.27
22 10 U.S.C. § 946 (Article 146, UCMJ).
23 For preferred charges involving “covered offenses,” the special trial counsel—rather than the convening authority—will have exclusive authority to
dispose of those charges with a right of first refusal as to jurisdiction over the offense.
24 The convening authority, or special trial counsel, as applicable, may determine a preliminary hearing should be held despite a waiver by the accused of
the right to be present at the preliminary hearing. Art. 32(a)(1)(B).
25 10 U.S.C. § 832 (2012) (Article 32, UCMJ); see also United States v. Henry, 76 M.J. 595, 603 (A.F. Ct. Crim. App. 2017).
26 Jennifer Steinhauer, Navy Hearing in Rape Case Raises Alarm, N.Y. Times, Sept. 20, 2013, available at https://www.nytimes.com/2013/09/21/us/
intrusive-grilling-in-rape-case-raises-alarm-on-military-hearings.html?searchResultPosition=1.
27 National Defense Authorization Act for Fiscal Year 2014 [FY14 NDAA], Pub. L. No. 113-66, § 1702, 127 Stat. 672 (2013). Other major reforms
include the significant curtailment of convening authorities’ authority to disapprove the findings or sentence of a court-martial, as well as a drastic
6
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
While the term probable cause is not defined in Article 32 or its implementing rule—Rule for Courts-Martial
(R.C.M.) 405—military law provides that probable cause requires more than bare suspicion, but something less than
a preponderance of the evidence (i.e., more likely than not).28 In American civilian jurisprudence, probable cause at a
preliminary hearing is considered a threshold determination without which a prosecution cannot proceed.29
In the military, the Article 32 preliminary hearing officer provides a written analysis of the evidence and recommends
whether the charges warrant trial by a general court-martial.30 Their report is forwarded through the chain of command
and staff judge advocate to the general court-martial convening authority.31 The preliminary hearing officer’s findings are
merely advisory, rather than binding, on commanders (and soon on the special trial counsel).32
Next, Article 34, UCMJ, requires that the staff judge advocate provide a written determination that parallels the
requirements of Article 32: affirmation that there is probable cause, the court-martial has jurisdiction, and the charges
state an offense.33 Staff judge advocates base their conclusions on an independent review of the evidence and on
discussions with prosecutors.34 Staff judge advocates may rely on incompetent or inadmissible evidence. The convening
authority may refer the case to trial only if the staff judge advocate concludes that all three elements are met—thus, the
staff judge advocate’s Article 34 conclusions are binding on the convening authority.
This statutory scheme, which renders the Article 32 preliminary hearing officer’s decision advisory, and the staff judge
advocate’s Article 34 determination a precondition of referral, permits the staff judge advocate to, in effect, overrule—
without explanation to the accused or the public—the preliminary hearing officer’s probable cause determination.
The staff judge advocate’s advice also serves as an independent check on the authority of the general court-martial
convening authority.35 Notably, following the creation of special trial counsel, Congress safeguarded their prosecutorial
independence by having the lead special trial counsel report directly to their respective Military Department’s Secretary
without intervening authority.36 Thus, the staff judge advocate will not provide Article 34 advice to the special trial
counsel and will not serve as a check on their authority to refer a case to a general court-martial.
reduction in clemency authority. In addition, the FY14 NDAA created Article 6b of the UCMJ, the military’s analogue to the federal Crime Victims’
Rights Act (18 U.S.C. § 3771), and directed the Military Services to establish special victims’ counsel programs and provide legal advice and
representation to military victims of sexual assault. This revision applied to Article 32 hearings conducted on or after Dec. 26, 2014.
28 United States v. Darnall, 76 M.J. 326, 330 (C.A.A.F. 2017) (citing United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007)). “Preponderance of the
evidence” is defined as “proof that an issue is more likely true than not.” The Wolters Kluwer Bouvier Law Dictionary Desk Edition (2012).
29 See Offices of the United States Attorneys, U.S. Department of Justice, Preliminary Hearing, Justice 101, https://www.justice.gov/usao/justice-101/
preliminary-hearing.
30 2019 MCM, supra note 3, R.C.M. 405(l).
31 Section 537 of the FY22 NDAA provides that in cases in which a special trial counsel exercises authority, the report of the preliminary hearing officer
shall be provided to the special trial counsel. National Defense Authorization Act for Fiscal Year 2022 [FY22 NDAA], Pub. L. No. 117–81, div. A, title
V, § 537, 135 Stat. 1692 (2021).
32 Art. 32(c), UCMJ; 2019 MCM, supra note 3, R.C.M. 405(a), Discussion (“Determinations and recommendations of the preliminary hearing officer are
advisory.”). See Appendix I, History of Articles 32, 33, and 34, UCMJ.
33 10 U.S.C. § 834 (2021) (Art. 34, UCMJ).
34 See Transcript of DAC-IPAD Policy Subcommittee Meeting 78–80 (Dec. 3, 2020), on file with the DAC-IPAD staff.
35 United States v. Meador, 75 M.J. 682, 683 (C.G. Ct. Crim. App. 2016) (“There is nothing in this statutory scheme that makes a determination of
probable cause by the PHO [‘preliminary hearing officer’] a precondition of referral to a general court-martial, nor is there any language making
the PHO’s determination binding on the staff judge advocate or the [convening authority]. By contrast, the staff judge advocate’s advice is a clear
precondition of referral to a general court-martial. The statutory language consequently provides no support for the proposition that the PHO’s
determination of probable cause is dispositive.”). Cf. The 2021 Army Criminal Law Deskbook, 14-1, which calls the Article 34 pretrial advice a
“substantial pretrial right of the accused,” because it “protects accused against trial on baseless charges.”
36 FY22 NDAA, supra note 31, at § 532(a)(2)(C).
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
The staff judge advocate also makes an advisory recommendation to the general court-martial convening authority as to
whether trial by general court-martial, or some other disposition, is appropriate.37 Under current law, Article 33, UCMJ,
says that when commanders, convening authorities, staff judge advocates, and judge advocates exercise their duties with
respect to disposition of criminal charges and specifications, they should consider the non-binding guidance issued by the
Secretary of Defense. The Secretary of Defense promulgated in Appendix 2.1 of the Manual for Courts-Martial a list 14
factors that these individuals should take into account when exercising these responsibilities. Article 33 also requires the
Secretary of Defense, in developing this disposition guidance, to consider the principles of prosecution set forth in the
Justice Manual of the U.S. Attorney General for disposition of federal criminal cases, with appropriate consideration of
military requirements.38 Significantly, statutory authority and case law guard each commander’s independent authority to
make decisions in criminal cases free from critique or reprisal from higher command echelons.39 Beginning in December
2023, the charging and referral decisions in 14 felony-equivalent offenses,40 along with related offenses, will shift to
independent, experienced military prosecutors.41
Comparisons with Civilian Practice
In contrast to the military justice system, in which a preliminary hearing officer’s no-probable-cause determination
is advisory, American federal and state civilian systems empower magistrates to dismiss charges that do not meet the
constitutional threshold requirement of probable cause. A no-bill decision from a grand jury has a similar effect.42
Significantly, a dismissal or no bill in the civilian system does not preclude the government from perfecting its case
and charging anew; however, a finding of no probable cause is a bar to prosecution of the current charges before the
magistrate or grand jury.43
In civilian practice, the gap between the lower standard of “probable cause” required to recommend prosecution and
the “beyond a reasonable doubt” standard for conviction at trial has been filled with structured decisional principles
and charging standards to guide prosecutors in the prudent and effective exercise of prosecutorial discretion.44 In the
federal system, the Principles of Federal Prosecution contained in the Justice Manual provide that a prosecutor may
37 Id. R.C.M. 701 requires that the defense receive a copy of the Article 34 advice and any document that memorializes the referral decision. Beginning in
December 2023, Article 34 requires that the special trial counsel make the probable cause finding for offenses over which they have authority. The staff
judge advocate will not have a role advising the special trial counsel on the referral decision.
38 U.S. Dep’t. of Justice, Justice Manual [Justice Manual], § 9-27.000 (Principles of Federal Prosecution), available at https://www.justice.gov/jm/
justice-manual.
39 10 U.S.C. § 837 (2021) (Art. 37, UCMJ).
40 The covered offenses over which special trial counsel will exercise authority fall under the following punitive articles in the UCMJ: Art. 117a (wrongful
broadcast or distribution of intimate visual images), Art. 118 (murder), Art. 119 (manslaughter), Art. 119a (death or injury of an unborn child), Art.
120 (rape and sexual assault generally), Art. 120a (mails: deposit of obscene matter), Art. 120b (rape and sexual assault of a child), Art. 120c (other
sexual misconduct), Art. 125 (kidnapping), Art. 125b (domestic violence), Art. 130 (stalking), Art. 132 (retaliation), Art. 134 (child pornography), Art.
134 (sexual harassment).
41 See Appendix C, FY22 NDAA Excerpt; see also IRC Report, supra note 4, App. B at 8, Recommendation 1.1, Creation of the Office of the Special
Victim Prosecutor (“[D]esignated independent judge advocates should replace commanders in deciding . . . whether [a] charge should be tried at court-
martial”). The military does not classify offenses as misdemeanors or felonies. Punishments for each offense are prescribed by the President through
executive orders published in the MCM. The broad range of potential punishment for an offense is limited by the jurisdictional authority of courts-
martial. See generally Arts. 16–21, UCMJ.
42 Justice Manual, supra note 38, at § 9-11.120 (“Once a grand jury returns a no-bill or otherwise acts on the merits in declining to return an
indictment, the same matter (i.e., the same transaction or event and the same putative defendant) should not be presented to another grand jury or
resubmitted to the same grand jury without first securing the approval of the responsible United States Attorney.”).
43 Id.
44 MJRG Report, supra note 3, at 338.
8
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
commence prosecution only after determining that probable cause exists to believe that a suspect has committed a federal
offense.45 The Justice Manual further states that the attorney for the government should commence or recommend
federal prosecution if they believe that the person’s conduct constitutes a federal offense, that the admissible evidence will
probably be sufficient to obtain and sustain a conviction, and that the prosecution serves a substantial federal interest.46
These prosecution standards serve a critical function for crime victims, the criminally accused, and the American public:
they strengthen consistency and uniformity of case disposition and confidence in the criminal justice system.47
While Article 33 requires the Secretary of Defense’s disposition guidance to “take into account, with appropriate
consideration of military requirements, the principles contained in official guidance of the Attorney General to attorneys
for the Government with respect to disposition of Federal criminal cases,”48 the current version of Appendix 2.1 of the
Manual for Courts-Martial stops short of complete parity with federal prosecution standards. Specifically, Appendix
2.1 does not adopt the Department of Justice’s Principles of Federal Prosecution. The Principles of Federal Prosecution
establish, as a threshold matter—prior to a charging decision—that a case should not be prosecuted unless the admissible
evidence will probably be sufficient to obtain and sustain a conviction.49 In contrast, the disposition guidance in
Appendix 2.1 lists sufficiency of the evidence as only one of the 14 factors to consider when deciding whether a general
court-martial is appropriate.50 As a result, military prosecutorial decision making does not mirror the federal practice of
prioritizing the sufficiency of the evidence when commencing or declining prosecution.51
45 Justice Manual, supra note 38, § 9-27.200 (Initiating and Declining Prosecution—Probable Cause Requirement).
46 Id. at § 9-27.220 (Grounds for Commencing or Declining Prosecution).
47 Id. at § 9-27.001 (Preface).
48 Art. 33, UCMJ.
49 Justice Manual, supra note 38, § 9-27.220 (Grounds for Commencing or Declining Prosecution).
50 Appendix 2.1, MCM 2019, supra note 3, at para. 2.1(h). The 14 factors (a non-exclusive list) are
a. The mission-related responsibilities of the command;
b. Whether the offense occurred during wartime, combat, or contingency operations;
c. The effect of the offense on the morale, health, safety, welfare, and good order and discipline of the command;
d. The nature, seriousness, and circumstances of the offense and the accused’s culpability in connection with the offense;
e. In cases involving an individual who is a victim under Article 6b, the views of the victim as to disposition;
f. The extent of the harm caused to any victim of the offense;
g. The availability and willingness of the victim and other witnesses to testify;
h. Whether admissible evidence will likely be sufficient to obtain and sustain a conviction in a trial by court-martial;
i. Input, if any, from law enforcement agencies involved in or having an interest in the specific case;
j. The truth-seeking function of trial by court-martial;
k. The accused’s willingness to cooperate in the investigation or prosecution of others;
l. The accused’s criminal history or history of misconduct, whether military or civilian, if any;
m. The probable sentence or other consequences to the accused of a conviction;
n. The impact and appropriateness of alternative disposition options—including nonjudicial punishment or
administrative action—with respect to the accused’s potential for continued service and the responsibilities of the
command with respect to justice and good order and discipline.
51 See Standards for Criminal Justice: Functions and Duties of the Prosecutor (Am. Bar Ass’n 2017) [ABA Standards for Criminal Justice];
American Bar Association Standard 3-4.3, Minimum Requirements for Filing and Maintaining Criminal Charges.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Prosecution Standards for Civilian Prosecutors
In 2020, the DAC-IPAD Policy Subcommittee interviewed civilian career prosecutors from regionally diverse state
and federal jurisdictions.52 When discussing a prosecutor’s decision to charge a case, all agreed that the evidentiary
standard used must be more than probable cause; and all but one agreed that the attorney should believe that there is
sufficient evidence to prove the charge beyond a reasonable doubt or that there was a reasonable likelihood of a successful
prosecution.53 A separate review of state rules of professional conduct or similar guidance on charging found that the
quantum of evidence is often more than probable cause, and a sufficiency of the evidence review is either required or
recommended before charging a case at trial.54
American Bar Association (ABA)
The American Bar Association’s Criminal Justice Standards provide guidance to prosecutors on a variety of subjects and
are intended for attorneys who investigate, prosecute, or provide legal advice to agents regarding criminal matters.55 The
standards are relied on by judges, prosecutors, defense attorneys, legislatures, and scholars, who recognize that they are
the product of careful consideration and drafting by experienced and fair-minded experts drawn from all parts of the
criminal justice system.56 The ABA’s minimum requirements to file criminal charges are set forth, in part, below:
• A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges
are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a
reasonable doubt, and that the decision to charge is in the interests of justice.
• After criminal charges are filed, a prosecutor should maintain them only if the prosecutor continues to reasonably
believe that probable cause exists and that admissible evidence will be sufficient to support conviction beyond a
reasonable doubt.57
The ABA sets out additional factors that may be weighed before filing criminal charges; however, those factors are
analyzed only after the threshold evidentiary standards of probable cause and the sufficiency of the admissible evidence
to support a finding of guilt beyond a reasonable doubt have been met.58 Thus, if the prosecutor does not have sufficient
admissible evidence to meet the higher standard of proof at trial, other factors—such as the victim’s interest in going to
trial—are not relevant.
52 See DAC-IPAD Staff Summary of Interviews with Civilian Prosecutors (May 2020–Jan. 2021), on file with staff.
53 Id.
54 The states reviewed represented a diverse area: Florida, South Carolina, North Carolina, Alabama, Louisiana, New Jersey, New York, Connecticut,
Virginia, California, Oregon, Illinois, Missouri, and Washington State.
55 ABA Standards for Criminal Justice, supra note 51.
56 Martin Marcus, The Making of the ABA Criminal Justice Standards: Forty Years of Excellence, Crim. Just., Winter 2009, 10–15, available at https://
www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/makingofstandards_marcus.pdf.
57 ABA Standards for Criminal Justice, supra at note 51, at § 3-4.3, Minimum Requirements for Filing and Maintaining Criminal Charges.
58 Id. at § 3-4.4, Discretion in Filing, Declining, Maintaining, and Dismissing Criminal Charges (additional factors a prosecutor may consider when
deciding whether to file or decline charges include the views of the victim, the background and characteristics of the offender, and any improper
conduct by law enforcement.).
10
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
National Prosecution Standards Published by the National District Attorneys Association (NDAA)
At the state and local level, district attorney’s offices consult the National Prosecution Standards for guidance in the
daily operations of the prosecution function, which includes screening charges. The NDAA standards parallel the federal
guidance:
While commencing a prosecution is permitted by most ethical standards upon a determination that
probable cause exists to believe that a crime has been committed and that the defendant has committed
it, the standard prescribes a higher standard for filing a criminal charge. To suggest that the charging
standard should be the prosecutor’s reasonable belief that the charges can be substantiated by admissible
evidence at trial is recognition of the powerful effects of the initiation of criminal charges. Pursuant to
the prosecution’s duty to seek justice, the protection of the rights of all (even the prospective defendant)
is required.59
Comparable Rules of Professional Conduct for the Military
The Services’ individual regulations governing professional responsibility for military attorneys are adapted from the
ABA Model Rules of Professional Conduct, with some adjustments necessitated by the unique nature of military
practice.60 Army, Navy, and Marine Corps trial counsel all have the same guidance under their respective Military
Departments’ Rule 3.8, Special Responsibilities of a Trial Counsel, in connection with a referral, including a requirement
to “recommend to the convening authority that any charge or specification not supported by probable cause be
withdrawn.”61
Rule 3.8 is supplemented by instructional commentary noting that a trial counsel has a “responsibility” to administer
justice and “is not simply an advocate.” Attorneys “may have the duty, in certain circumstances, to bring to the court’s
attention any charge that lacks sufficient evidence to support a conviction.”62
The Air Force prescribes a different professional standard for trial counsel within that Military Service:
It is unprofessional conduct for a trial counsel to institute, or cause to be instituted, or to permit
the continued pendency of criminal charges when it is known that the charges are not supported by
59 National District Attorneys Association, National Prosecution Standards 56 (4th ed. Jan. 2023), Part IV, Pretrial Considerations. (These
standards are intended to supplement rather than replace the existing rules of ethical conduct that apply in a jurisdiction. Generally, these standards
should be construed in such a way that they are consistent with existing law and applicable rules of ethical conduct.)
60 U.S. Dep’t of Army, Army Regulation 27-26, Rules of Professional Conduct for Lawyers [AR 27-26] (June 28, 2018); U.S. Dep’t of Navy,
Navy JAG Instruction 5803.1E, Professional Conduct of Attorney Practicing Under the Cognizance and Supervision of the Judge
Advocate General [Navy JAG Instruction 5803.1E] (Jan. 20, 2015); U.S. Dep’t Air Force, Air Force Instruction 51-110 [AFI 51-110],
Professional Responsibility Program (Dec. 11, 2018); Commandant Instruction M5800.1, Coast Guard Legal Professional Responsibility
Program (June 1, 2005).The Services adopted the ABA’s Model Rules of Professional Conduct but not the ABA Standards of Criminal Justice Relating
to the Prosecution Function. The former require that a prosecutor refrain from charging a case not supported by probable cause, while the latter require
not just probable cause but also that admissible evidence will be sufficient to support conviction beyond a reasonable doubt. See ABA Standards for
Criminal Justice, supra note 51; see also Model Rules of Prof ’ Conduct R. 3.8 (ABA 2020) [ABA Model Rules].
61 See AR 27-26, supra note 60, at Rule 3.8; Navy JAG Instruction 5803.1E, supra note 60, at Rule 3.8. Both Navy and Marine Corps trial counsel
practice under the same Professional Rules of Conduct. Cf. ABA Model Rules, supra note 60, 3.8(a).
62 AR 27-26, supra note 60, at Rule 3.8, comment section. See also United States v. Howe, 37 M.J. 1062 (N‑M.C.M.R. 1993) (Government’s prosecutorial
duty requires that it not permit the continued pendency of criminal charges in the absence of sufficient evidence to support a conviction). This case is
cited in both the Army’s and Navy’s Rules of Professional Conduct.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
probable cause. A trial counsel should not institute or permit the continued pendency of criminal
charges in the absence of admissible evidence to support a conviction.63
The Coast Guard’s standard requires the trial counsel to recommend that the convening authority withdraw any charge or
specification not warranted by the evidence.64
Given the high standard of proof required for a conviction—proof beyond a reasonable doubt—it is logical to analyze the
strength of the evidence to support a conviction at trial. Reasonable doubt is defined as an honest misgiving generated by
insufficient proof; thus, proof beyond a reasonable doubt is equivalent to an evidentiary certainty about guilt, although
not necessarily an absolute or mathematical certainty.65 Civilian prosecutors assess the sufficiency of the admissible
evidence to bridge the gap between probable cause and the burden of proof needed to establish guilt at trial. Military
prosecutors and disposition authorities would benefit from an approach similar to the civilian model because both
military and civilian criminal courts require proof beyond a reasonable doubt to obtain a criminal conviction.
Observations by Independent Advisory Groups
Two advisory groups—in addition to this Committee—have recommended ways to strengthen pretrial procedures in the
military, including ways to emphasize the justice-seeking purpose of military law as well as the command-driven focus on
good order and discipline. On multiple occasions, these groups have observed a connection between the advisory nature
of Article 32 hearings and deleterious case outcomes.66 These groups have also noted systemic benefits in elevating the
prosecution standard above the probable cause threshold as a matter of sound practice and of fundamental fairness.67
In 2016, the Judicial Proceedings Panel (JPP), another federal advisory committee reviewing sexual assault in the
military,68 visited numerous military installations and interviewed more than 280 individuals involved in the military
justice system.69 These military justice practitioners often expressed concern that the Article 32 hearing was no longer a
meaningful process for determining the strength of the evidence and therefore the case; they described these hearings as
“paper drills,” as it was common for no witnesses to testify. Many judge advocates also expressed the view that convening
authorities feel external pressure to prosecute sexual offense cases and, as a result, will refer a case without sufficient
evidence to convict at trial rather than deal with possible media scrutiny and damage to their career.70
63 AFI 51-110, supra note 60, at Standard 3-3.9, “Discretion in the Charging Decision” (Dec. 11, 2018).
64 U.S. Coast Guard, Commandant Instruction M5800.1, supra note 60.
65 U.S. Dep’t of Army, Pamphlet 27-9, Military Judge’s Benchbook 2-5-12 (Feb. 29, 2020) (Provides the standard panel instructions on reasonable
doubt for each Military Service).
66 The RSP, JPP, DAC-IPAD, and IRC all reviewed this issue. The DAC-IPAD’s review of pretrial process issues was halted when the Committee was
suspended in January 2021 as part of DoD’s zero-based review of all DoD advisory committees.
67 The JPP and DAC-IPAD recommended elevating the referral standard. While the IRC strongly suggested that the Department of Justice’s standard be
adopted, it formally recommended further study by the DAC-IPAD.
68 National Defense Authorization Act for Fiscal Year 2013 [FY13 NDAA], Pub. L. No. 112-239, § 576, 126 Stat. 1632 (Jan. 2, 2013), as amended by
FY14 NDAA, supra note 27, at § 1731, as further amended by Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for
Fiscal Year 2015 [FY15 NDAA], Pub. L. No. 113-291, § 545, 128 Stat. 3292 (Dec. 19, 2014). Between February 2014 and October 2017, the JPP
released 11 reports on varying topics.
69 Judicial Proceedings Panel Report on Panel Concerns Regarding the Fair Administration of Military Justice in Sexual Assault Cases
(Sept. 2017) [JPP Report], available at https://dacipad.whs.mil/images/Public/ 10-Reading_Room/04_Reports/01_JPP_Reports/10_JPP_Concerns_
Fair_MJ_Report_Final_ 20170915.pdf.
70 Id. at 10.
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RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
Echoing the JPP’s concerns, the DAC-IPAD also found systemic problems with the referral of penetrative sexual offense
charges to court-martial when there is not sufficient admissible evidence to obtain and sustain a conviction on the
charged offense.71 In our review of almost 2,000 investigative case files, we concluded that weak pretrial procedures
and a lack of prosecutorial policy guidance contributed directly to frequent acquittals in sexual offense cases, and that
probable cause was not an adequate standard for referring a case to trial.72 The DAC-IPAD observed that sending a case
to court-martial in the absence of sufficient admissible evidence to obtain and sustain a conviction has significant negative
implications for the accused and the victim, and erodes trust in the military justice process.
In 2021, at the President’s direction, the Secretary of Defense established the Independent Review Commission on Sexual
Assault in the Military.73 The IRC held extensive listening sessions with hundreds of stakeholders, including general
court-martial convening authorities. These commanders expanded on the same troubling issue of referring a case with
deficient evidence merely to “send a message.” The IRC heard that this practice harms both victims and accused and
erodes public confidence in military justice.74 The IRC found that the decision to forward charges to court-martial is
one of the most consequential decisions in the military justice process, and thus consideration of the sufficiency of the
evidence both is a matter of fundamental fairness and serves the interest of the efficient administration of justice.75
While emphasizing the need for more robust procedures for selecting cases, the IRC recommended that independent and
specialized prosecutors be solely responsible for the disposition of sexual offenses and other serious felony cases, such as
domestic violence and stalking. On the basis of the IRC’s recommendation, Congress established the authority of new
special trial counsel in Article 24a, UCMJ. Both the IRC and Congress envisioned that special trial counsel will possess
the expertise needed to foster long-term institutional competence and to properly assess the sufficiency of the evidence
before sending a case to court-martial. Congress stressed this point in its Joint Explanatory Statement accompanying the
annual defense bill that established special trial counsel:
We emphasize that when determining whether to refer charges and specifications to a court-martial
for trial, the convening authority, or, when applicable, the special trial counsel, should first evaluate
whether admissible evidence will likely be sufficient to obtain and sustain a conviction in a trial by
court-martial.76
This foundational concept supports more stringent pretrial procedures for the military that achieve parity with the
Department of Justice Federal Principles of Prosecution and aligns with bedrock principles of American jurisprudence.
71 DAC-IPAD Report on Investigative Case File Reviews, supra note 18, at 16 (Finding 111) (the DAC-IPAD’s three-year review of almost 2,000
investigative case files involving reports of adult-victim penetrative sexual offenses that reached a final disposition in FY17).
72 Id. at 12 (Finding 101).
73 See IRC Report, supra note 4, App. B at 8.
74 Id. at 11.
75 Id.
76 See Joint Explanatory Statement accompanying the FY22 NDAA, comment on amendments contained in § 537. An excerpt from the Joint Explanatory
Statement is provided at Appendix C of this report.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
III. REFORMING ARTICLE 32 PRELIMINARY HEARINGS
DAC-IPAD Recommendation 48a: Amend Article 32 to provide that a preliminary hearing officer’s determination
of no probable cause precludes referral of the affected specification(s) to a general court-martial—subject to
reconsideration as described in Recommendation 48b—without prejudice to the government to prefer new charges.
DAC-IPAD Recommendation 48b: Amend Article 32 and Rule for Courts-Martial 405 to permit reconsideration
of a preliminary hearing officer’s no-probable-cause determination upon the presentation of newly discovered
evidence, or evidence that, in the exercise of due diligence, could not reasonably have been obtained before the
original hearing, subject to the following:
1. Trial counsel, within 10 days of receiving the preliminary hearing officer’s report, petitions the preliminary
hearing officer to reopen the Article 32 preliminary hearing stating the nature of the newly discovered evidence
and the reason it was not previously presented. After 10 days, a petition may be made only for good cause.
2. The preliminary hearing officer shall reconsider their previous no-probable-cause determination one time upon
reopening the Article 32 preliminary hearing to receive the evidence as described above. After reconsideration,
the preliminary hearing officer’s determination as to whether probable cause exists is final, but is without
prejudice to the government to prefer new charges.
It has been almost 10 years since Congress transformed Article 32, UCMJ, into a preliminary hearing with two primary
purposes: (1) to determine whether there is probable cause to believe that the accused committed the offenses charged,
and (2) to recommend the disposition that should be made of the case.77 Sufficient time has passed to observe the effect
of this significant change in military practice: Article 32 preliminary hearings today are not functioning as a meaningful
screening mechanism for preferred charges and are failing to effectively inform the referral decision.78 The advisory
nature of Article 32 undermines its own purposes and creates systemic problems with the pretrial processing of criminal
misconduct.
The DAC-IPAD therefore recommends that Congress amend Article 32 so that a no-probable-cause finding bars
prosecution of the affected charges and specifications by a general court-martial, subject to reconsideration upon the
presentation of newly discovered evidence.79 This reform does not empower preliminary hearing officers to dismiss the
affected charges; rather, a preliminary hearing officer’s no-probable-cause determination would require trial counsel
to dismiss the affected charge(s) at or before referral to a general court-martial. In any case, the Article 32 preliminary
hearing officer’s decision would be without prejudice and the government would be free to prefer new charges, which
has been the practice of state and federal civilian prosecutors for centuries.80 This recommendation fully accords with the
77 FY14 NDAA, supra note 27, at § 1702.
78 Frank E. Kostik, Lieutenant Colonel, U.S. Army, and Elizabeth L. Lippy, Consequence of Change: An Argument to Increase Litigation Experience to Fill the
Void Left by the Changes to the Preliminary Hearing in the Military Justice System, 43 Am. J. Trial Advoc. 109, 121 (Fall 2019).
79 See infra pp. xx–xx for a discussion of this recommendation. While this report examines whether to make a preliminary hearing officer’s no-probable-
cause determination binding, a determination that the evidence did establish probable cause does not—and should not—bind subsequent authorities
to try the case at a general court-martial. Such a notion is contrary to Article 32 reform: Article 32 is intended to uniformly and reliably screen out
unsupported charges and to assist, but not direct, consistency in referral decisions. In cases supported by probable cause, the disposition decision should
remain with the special trial counsel or convening authority.
80 10 U.S.C. § 844 (Art. 44, UCMJ).
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RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
IRC’s goal that Article 32 proceedings should “promote fairness, justice, and efficiency.”81 The following sections describe
in detail the problems caused by an advisory Article 32 no-probable-cause determination, the cost to the system, and the
value of reform.
Problems with the Advisory Nature of Article 32, UCMJ, Preliminary Hearings
Data from the DAC-IPAD’s multiyear studies described in the methodology section of this report illuminate the
problems caused by the advisory nature of Article 32 hearings. Most penetrative sexual offense charges referred to a
general court-martial after a preliminary hearing officer found no probable cause for that offense ended in an acquittal
or dismissal.82 For adult-victim penetrative sexual offenses evaluated between FY14 and FY21 in which the preliminary
hearing officer found no probable cause for the penetrative sexual offense, but the convening authority referred those
charges nonetheless, 103 cases ended with a dismissal of the penetrative sexual offense, 90 cases resulted in a finding of
not guilty on that offense, 15 cases resulted in a finding of guilty on that offense, and 7 cases had mixed findings.83
Court-martial records reviewed annually by the DAC-IPAD showed that more than 30% of the adult-victim penetrative
sexual offense cases tried in FY16 through FY18 ended in a full acquittal.84 Of the 235 adult-victim penetrative sexual
offense charges tried to verdict in FY17, 144 (61.3%) of the cases resulted in an acquittal on the penetrative sexual
offense, and 91 (38.7%) of the cases resulted in a conviction on the penetrative sexual offense (DAC-IPAD Finding 90).85
The DAC-IPAD attributes these extremely low conviction rates (and high rates of acquittal) to the frequency with which
penetrative sexual offense cases that do not meet the standard of proof required at trial are systematically referred to a
court-martial.86
Some of these convictions were reversed on appeal. Notably, in several cases in which adult-victim sexual offenses were
tried at general courts-martial after the Article 32 preliminary hearing officer found no probable cause, the appellate
courts overturned the convictions for lack of factual sufficiency and urged prosecutors to heed ethical guidelines.87 One
appellate judge reminded government counsel of their ethical obligations at the preliminary hearing stage of the process
after the court overturned a case that did not meet the probable cause requirement:
This Preliminary Hearing, at least with respect to these specifications, provided no meaningful
protection for Appellant and no check on the Government’s ability to expose him to felony-level
81 IRC Report, supra note 4, App. B at 53.
82 See Appendix E, Pretrial Processing Data, at Table 5: 193 out of 216 cases (89%) resulted in either a finding of not guilty on, or a dismissal of, the
penetrative sexual offense charge.
83 The outcome in one of those cases was unknown. Note that the statistics cited here include FY14 and FY15, when the old Article 32 investigation—
before the new preliminary hearing procedures were created by Congress—was in force.
84 Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, Court-Martial
Adjudication Data Report 25 (Nov. 2019).
85 DAC-IPAD Report on Investigative Case File Reviews, supra note 18, at 41 (DAC-IPAD statistics for the outcome of the charged adult-victim
penetrative sexual offense).
86 Id. at 4.
87 See United States v. Hanabarger, No. 201900031, 2020 CCA LEXIS 252 (N-M. Ct. Crim. App. July 30, 2020); United States v. Lewis, No. 201900049,
2020 CCA LEXIS 199 (N-M. Ct. Crim. App. June 8, 2020) (Stephens, Senior Judge, concurring) (Unpub. Op.). Cf. United States v. Hyppolite, No.
ACM 39358, 2018 CCA LEXIS 517 (A.F. Ct. Crim. App. Oct. 25, 2018) (Huygen, Judge, dissenting) (Unpub. Op.) (expressing disagreement with
the majority’s finding that the evidence supporting a specification, which the preliminary hearing officer found unsupported by probable cause, was
factually sufficient), aff’d, 79 M.J. 161 (C.A.A.F. 2019).
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
punishment. . . . Specifications lacking probable cause should not find a home on referred charge sheets
for general courts-martial.88
Although convictions and acquittals are not always the best metrics to measure the success of criminal prosecutions, the
high percentages of dismissals and acquittals in the military’s data are striking. In too many military felony sexual offense
cases over the past eight years, both victims and accused have been harmed by an approach that seeks to send a message
to the force or is the product of political pressure to address sexual assault—a very real problem within the force. With
the advent of special trial counsel and implementation of these recommendations, the DAC-IPAD believes its proposed
prosecutor-focused reforms will better balance the dual purposes of military law: fostering the interests of justice and
good order and discipline.
Because the advisory nature of the Article 32 hearing does not incentivize counsel for the government to establish
probable cause,89 one of its primary purposes is undercut. The DAC-IPAD’s review of Article 32 reports produced in
FY16 through FY21 showed that in 17% of cases across the Services involving an adult penetrative sexual offense charge,
the preliminary hearing officer determined that one or more penetrative sexual offense charges lacked probable cause.90
In order to understand system-wide patterns, the DAC-IPAD also examined all preferred cases—involving any UCMJ
offense—that were completed in FY21. The DAC-IPAD’s review of all preferred cases in which an Article 32 preliminary
hearing was held revealed that in 26% of all preliminary hearings, the preliminary hearing officer found that one or more
offenses lacked probable cause.91 These findings are especially concerning because at the Article 32 stage, the government
has already charged a Service member with a crime; therefore, probable cause is a low evidentiary threshold that the
government should easily meet by the time a case reaches a preliminary hearing.
88 United States v. Lewis, No. 201900049, 2020 CCA LEXIS 199, 42 (Stephens, Senior Judge, concurring) (Unpub. Op.).
89 See, generally, Transcript, DAC-IPAD Public Meeting 72, 101, 251–52 (Aug. 23, 2019).
90 Appendix E, Pretrial Processing Data, at Table 3. The DAC-IPAD’s review of these preliminary hearings focused on FY16–FY21 because FY16 was the
first year in which the new preliminary hearing format was applicable. If the case-processing documents indicated that the preliminary hearing officer
determined that probable cause was not established for any UCMJ offense, the staff then recorded the ultimate disposition of the no-probable-cause
specification(s). If the no-probable-cause offense was charged in the alternative and the preliminary hearing officer determined that probable cause was
established under a different legal theory, the staff did not count that case as involving a no-probable-cause determination.
91 See Appendix E, Pretrial Processing Data, at Table 10A-1. The no-probable-cause (no-PC) determinations in FY21 data were often accompanied by the
following observations from PHOs:
• The offense alleged likely did not occur.
• The determination was made without the benefit of sworn, live witness testimony, subject to cross-examination, and the documents provided were
insufficient to establish one or more elements of a charged offense.
• Other evidence likely existed and was simply not provided.
• In a small number of these no-PC cases, the PHO determined that there was no PC for the charged offense, but PC existed for a lesser included
offense or an alternate charge. For example, a PHO may find that there is not PC for aggravated assault under Article 128, UCMJ, but there is
probable cause for assault consummated by a battery under the same article. Or a PHO may find that there is no PC for a sexual contact offense
under Article 120, UCMJ, but there is PC for an assault consummated by a battery under Article 128, UCMJ.
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RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
FIGURE 2. NUMBER OF CASES IN WHICH AN ARTICLE 32 PHO FOUND NO PC FOR A PSO
Held
IO found no PC
250
200
150
100
50
0
FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY
16 17 18 19 20 21 16 17 18 19 20 21 16 17 18 19 20 21 16 17 18 19 20 21
Army Navy Marine Corps Air Force
TABLE 1. FY21: NUMBER OF CASES IN WHICH AN ARTICLE 32 PHO FOUND NO PC (ALL OFFENSES)
Army Navy Marine Corps Air Force Coast Guard Total
Art 32 hearings (all) 306 88 63 270 13 740
PHO found no PC
90 (29%) 16 (18%) 16 (25%) 71 (26%) 0 (0%) 193 (26%)
(all)
Statistics show that because the Article 32 preliminary hearing is advisory, too many prosecutors treat the preliminary
hearing in a perfunctory manner at the expense of the accused and victims. In current practice, trial counsel may, without
consequence, submit as their only exhibit an entire report of investigation (ROI) from the military criminal investigative
organization (MCIO), or may elect to provide investigative summaries in lieu of more reliable evidence. That less than
20% of all preliminary hearings held in FY21 involved live testimony from any witness indicates that even military
investigators rarely testify to establish probable cause.92 This “paper drill”-style preliminary hearing further incentivizes
legal gamesmanship on both sides, in the form of delayed discovery and extended pretrial litigation. All the while, the
92 See Appendix E, Pretrial Processing Data, at Table 8A.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
accused’s reputational, professional, and liberty interests hang in the balance, while victims are left with unrealistic
expectations regarding the likelihood of success at trial.
When the Article 32 proceeding is advisory, as opposed to binding, the government is free to pursue cases virtually
unchecked, because a staff judge advocate can overrule a preliminary hearing officer’s no-probable-cause determination
without explanation. The DAC-IPAD heard commentary suggesting that perhaps preliminary hearing officers do not
understand probable cause.93 However, the data do not support this premise. The DAC-IPAD’s extensive case document
review indicates that Article 32 preliminary hearing officers—mostly field-grade judge advocates—consistently provide
in-depth analyses of how the case file evidence aligns with the elements of each offense.94 Indeed, several military justice
experts observed that the preliminary hearing officer’s analysis in the Article 32 report is of great value to the referral
authority.95 These observations indicate that persons with sufficient expertise are serving as preliminary hearing officers
and are qualified to render a binding no-probable-cause determination.
Some of the Article 32 reports reviewed by the DAC-IPAD revealed the preliminary hearing officer’s frustration that cases
they considered lacking in evidence would progress through the military justice process. This will be of particular concern
in cases prosecuted by the new special trial counsel, because pretrial decision making will be consolidated in one office.
Although a staff judge advocate’s independent, binding no-probable-cause determination under Article 34 serves as a
restraint on the convening authority’s ability to refer cases to a general court-martial,96 a special trial counsel will possess
exclusive authority to refer cases to trial, without any independent check on prosecutorial discretion.97
Value of a Binding No-Probable-Cause Determination
A preliminary hearing process that precludes prosecution by a general court-martial after a no-probable-cause
determination would remedy weaknesses in the current system.98 One of the most important benefits is protection
for Service members against prosecution on charges unsupported by probable cause. Another benefit of weeding out
unsupported charges is a more effective and efficient military justice system. Although career judge advocates cautioned
93 DAC-IPAD Request for Information Set 11 (May 15, 2019) (Responses to A.Q1a, from the Special Victim’s Counsel, or Victim’s Legal Counsel,
Organizations for the Army, Navy, Marine Corps, and Air Force.).
94 Transcript of DAC-IPAD Policy Subcommittee Meeting 11–14 (Dec. 3, 2020); see also Transcript of DAC-IPAD Public Meeting 220–21 (Nov. 11, 2020)
(The DAC-IPAD Policy Subcommittee made a preliminary assessment that the recommendation for a binding Article 32 presumes that a military judge
or magistrate should serve as the preliminary hearing officer, or under exceptional circumstances another judge advocate with extensive military justice
experience.).
95 Id. (discussing Art. 32(c) Report to Convening authority, which requires “[f ]or each specification, a statement of the reasoning and conclusions of the
hearing officer . . . including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations of the
hearing officer concerning the testimony of witnesses and the availability and admissibility of evidence at trial”).
96 Art. 34(a)(1), UCMJ (2021).
97 Importantly, judge advocates, including military justice division chiefs, who testified before the DAC-IPAD against changes to the Article 32 did not
account for the new OSTC system in which independent prosecutors—not commanders—lead military justice decision making. Special trial counsel
will exercise authority over cases involving 14 covered offenses, and “known” or “related” offenses. The Department of Defense submitted a legislative
proposal to Congress in March 2023 that, if enacted into law, would expand the jurisdiction of special trial counsel to include authority over such
offenses occurring before Dec. 28, 2023.
98 See supra section II, Background and Recent Developments, at p. ___; see also JPP Report, supra note 69, at 5 (“[T]hese views . . . were brought to the
Subcommittee’s attention during every installation site visit, were supported by specific examples, and were also contextualized by the Subcommittee’s
subsequent research into related policies and statutes, as well as testimony before the JPP and the Subcommittee. Taken together, these considerations
suggest that the issues could be systemic and should be addressed.”); DAC-IPAD Fourth Annual Report, supra note 12, at 6–7 (The DAC-IPAD,
after an exhaustive review of sexual assault case files, observed a systemic problem in that Articles 32 and 34 permit weak cases to proceed to trial—with
damaging consequences for the ][ military justice system.); IRC Report, supra note 4, App. B at 52 (The IRC spoke with military justice experts who
agreed the issue is one of fundamental fairness to the victim and the accused.).
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RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
that the Article 32 hearing has always been advisory, in the vast majority of FY21 cases in which a preliminary hearing
officer found no probable cause for one or more charged offenses, the charge was either dismissed or the accused was
found not guilty—indications that preliminary hearing officers’ assessments are reasonably predictive of the appropriate
disposition of the charge(s).99 Giving due weight to a no-probable-cause finding would avoid needless litigation, would
more quickly relieve Service members from the stigma of felony charges that lack evidentiary support, and would halt the
practice of sending cases to trial despite insufficient evidence.
In sum, while the 2014 transformation of the Article 32 proceeding into a preliminary hearing was a significant change
for military practice, enhancing the effect of a no-probable-cause finding is not a radical idea. If this recommendation
is implemented, the preliminary hearing’s purpose, scope, and function will remain the same. Barring prosecution by
a general court-martial after a preliminary hearing finding of no probable cause would align military practice with
foundational principles of federal civilian practice. The failure of the government to meet the minimal requirement of
probable cause is an absolute bar to initiating a federal prosecution, and in some circumstances such failure may preclude
reference to other prosecuting authorities or recourse to noncriminal measures.100
Some special victim’s counsel and trial counsel have voiced concern that the requirement for a binding probable cause
determination might erode the victim’s statutory right to refuse to testify at the Article 32 preliminary hearing.101
However, victims’ rights are not diminished by this change. Article 32 and Rule for Courts-Martial 405 permit
alternatives to live testimony, such as recorded statements to law enforcement. A prosecutor must have the victim’s
agreement to testify or may present the testimony of other witnesses, such as investigators, to establish probable cause.
Similarly, the victim’s right to confer with counsel for the government, the convening authority, or the special trial
counsel regarding their preference as to disposition is unaffected by the requirement for a binding probable cause
determination.
Finally, it is important to consider the effects of this reform, which may increase the number of Article 32 preliminary
hearings. The following data support the assumption that a slightly increased caseload is likely at the Article 32 stage:102
• In FY14, when Article 32 required a thorough investigation of the charges, the defense rarely waived the Article
32 investigation in penetrative sexual offense cases (19 waivers in 445 cases [4%]).
• In FY16 through FY21, in penetrative sexual offense cases the percentage of Article 32 preliminary hearings
waived ranged from 21% to 26%.
• In FY21, in cases involving all UCMJ offenses 31% of Article 32 preliminary hearings were waived.
Unlike the old Article 32 hearing, which resembled a contested trial, the more limited scope of the current Article
32 preliminary hearing mitigates the concern that a binding no-probable-cause determination would unduly burden
prosecutors. On balance, it is more efficient to resolve charges earlier in the court-martial process and refer fewer cases
that have no reasonable probability of evidence sufficient to support a conviction and that likely will result in a dismissal
or acquittal.
99 See Appendix E, Pretrial Processing Data, at Table 5.
100 Justice Manual, supra note 38.
101 See Appendix D, Request for Information and Service Narrative Responses, Responses to Q1.
102 See Appendix E, Pretrial Processing Data, at Table 1.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Reconsideration of an Article 32 No-Probable-Cause Determination
In every judicial system in the United States, pretrial rulings are subject to reconsideration or review. The standards and
procedures for resubmission vary widely among jurisdictions, but most systems provide the prosecution with additional,
or alternative, means to pursue charges despite an adverse pretrial ruling.103 In the federal system and 18 states,
prosecutors may revive a prosecution by obtaining an indictment on charges that did not survive a preliminary hearing
screening.104 In other states, a prosecutor may petition a magistrate for reconsideration by showing additional competent
evidence to overcome the prior dismissal. In jurisdictions with a right to grand jury indictment, a grand jury’s “no bill”
does not inherently preclude resubmission; however, most jurisdictions restrict resubmission to the grand jury to protect
against prosecutorial abuses.105
If Article 32 is amended to make a no-probable-cause determination binding, there must be an opportunity for
reconsideration upon the presentation of newly discovered evidence or evidence that, in the exercise of due diligence,
could not reasonably have been obtained before the hearing.106 Military pretrial procedures should provide opportunity
for trial counsel, upon receipt of the preliminary hearing officer’s report, to petition the preliminary hearing officer to
reopen the Article 32 preliminary hearing, clearly stating the nature of the newly discovered evidence and the reason it
was not previously presented, in order to perfect the specifications at hand. The prosecution would also retain the ability
to re-prefer charges following dismissal, because the preliminary hearing officer’s findings would be without prejudice.
These findings regarding probable cause also would be without prejudice to the government’s ability to address the
misconduct in another forum.
The existing rules for military preliminary hearings provide a means to reopen the Article 32 hearing in limited
circumstances: “If the preliminary hearing officer determines that additional evidence is necessary [to determine probable
cause], the preliminary hearing officer may provide the parties an opportunity to present additional testimony or
evidence.”107 The convening authority also may reopen the preliminary hearing.108 Similarly, in the context of pretrial
confinement, the Manual for Courts-Martial provides a means to reconsider decisions regarding continued confinement
“upon any significant information not previously considered.”109 Both rules provide an opportunity to reopen or extend the
proceeding before the same presiding officer to give the government another opportunity to establish probable cause.110
The Judge Advocates General (TJAGs) of the Military Departments, and the Staff Judge Advocate to the Commandant of
the Marine Corps, formally advised the DAC-IPAD of their continued opposition to this Article 32 recommendation.111
103 Wayne LaFave, Jerold Israel, Nancy King & Orin Kerr, Criminal Procedure, Vol. 4, §§ 14.1(a), 14.2(b), 15.2(h) (4th ed. 2015). Jeopardy does
not attach until a defendant is put to trial. See Serfass v. United States, 420 U.S. 377, 388 (1975). Therefore, the double jeopardy clause of the Fifth
Amendment does not bar resubmission after a grand jury decides not to indict, or following a pretrial dismissal, and it does not preclude refiling of
charges after a magistrate’s dismissal at a preliminary hearing. These pretrial proceedings do not adjudicate offenses in a way that reflects a genuine risk
of conviction so as to trigger the protections of the double jeopardy clause. United States v. Dionisio, 503 F.3d 78, 89 (2d Cir. 2007). Jeopardy attaches
in a bench trial when the judge begins to hear evidence, and it attaches in a jury trial after the jury has been empaneled and sworn. Id. at 82.
104 LaFave et al., supra note 103, at §§ 14.1(a), 14.2(b), 15.2(h).
105 See, e.g., N.Y. Crim. Pro. Law § 190.75 (Consol. 2021).
106 The DACI-PAD recognizes that the Article 32 hearing takes place at a stage in the proceedings when the case continues to develop with some
evidence—e.g., digital communications and lab results that may be subject to delays. Therefore, the government should schedule the hearing when it
has sufficient evidence to meet the probable cause standard.
107 2019 MCM, supra note 3, R.C.M. 405(j)(1).
108 Id., R.C.M. 405(m), discussion.
109 Id., R.C.M. 305(i)(2)(E).
110 Since 2019, the MCM has authorized military judges to rule on matters prior to referral. This report does not recommend allowing the government to
appeal a preliminary hearing officer’s no-probable-cause determination to a military judge or magistrate acting pursuant to Article 30a.
111 See generally Transcript, DAC-IPAD Policy Subcommittee Meeting 120, 125–27 (Dec. 3, 2020); Request for Information and Service Narrative Responses
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DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
If, however, Congress were to amend Article 32 to make a no-probable-cause determination binding, the Services
unanimously favor a process for reconsideration, so long as it does not unduly delay pretrial processing.112 The Services
have offered several suggestions regarding reconsideration:113
• Give a commander—as opposed to the preliminary hearing officer—the authority to reopen or start the Article
32 process to consider additional relevant evidence.
• Model the process for reconsidering pretrial confinement, which requires the government to base the
reconsideration on “any significant evidence not previously considered” by the presiding officer.
• Permit the government to seek de novo review before a military judge.
• Allow staff judge advocates or special trial counsel to overrule the preliminary hearing officer’s no-probable-cause
determination “to prevent injustice.”
• Bear in mind that any reconsideration should accord with a pending expansion of victims’ ability to challenge
preliminary hearing officer decisions.114
The DAC-IPAD’s proposal for reconsideration strikes the appropriate balance of holding the government to its
evidentiary burden of probable cause while providing trial counsel ample opportunity to pursue charges on behalf
of the United States. In all cases, trial counsel can mitigate problems by ensuring that probable cause exists prior to
preferral of charges. Carefully developed charging decisions should reduce the need for post–Article 32 hearing requests
for reconsideration. The requirement for newly discovered evidence, rather than simply new evidence, is consistent
with the notion that the law should encourage a competent presentation of evidence. The government should not be
able to seek reconsideration based on evidence in its possession that it chose not to present at the preliminary hearing.
However, evidence not known despite the exercise of due diligence could justify reopening the Article 32 hearing. The
implementing rules could allow a preliminary hearing officer to grant additional time beyond 10 days for good cause.
A binding no-probable-cause determination at the Article 32 hearing, with opportunity for reconsideration and
re-preferral, is one piece of the package of reforms recommended by the DAC-IPAD in this report. The Committee’s
companion recommendation, which aligns with and supports the need for better screening of charges at the Article 32
preliminary hearing, is to establish uniform prosecution standards in Appendix 2.1 of the Manual for Courts-Martial.
Section IV of this report explains why the military should apply the same threshold for prosecution as that used in federal
civilian criminal cases—admissible evidence that is sufficient to obtain and sustain a conviction.
at Appendix D.
112 Request for Information and Service Narrative Responses at Appendix D.
113 Id.
114 See Annex to the Draft Executive Order, 2023 Amendments to the Manual for Courts-Martial, United States, 87 Fed. Reg. 63,484 (Oct. 19, 2022):
R.C.M. 309: (10) Victim’s petition for relief.
(A) A victim of an offense under the UCMJ, as defined in Article 6b(b), may file a motion pre-referral requesting that a military judge require a
preliminary hearing officer conducting a preliminary hearing under R.C.M. 405 to comply with:
(i) Articles 6b or 32, UCMJ;
(ii) R.C.M. 405; or
(iii) Mil. R. Evid. 412, 513, 514, or 615.
(B) The military judge may grant or deny such a motion. The ruling is subject to further review pursuant to Article 6b(e), UCMJ.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
IV. ESTABLISHING UNIFORM PROSECUTION STANDARDS
IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL,
AND TRAINING THE SERVICES
DAC-IPAD Recommendation 49: The Secretary of Defense revise Appendix 2.1, Manual for Courts-Martial,
to align with the prosecution principles contained in official guidance of the United States Attorney General with
respect to disposition of federal criminal cases. These revisions should provide that special trial counsel refer charges
to a court-martial, and judge advocates recommend that a convening authority refer charges to a court-martial, only
if they believe that the Service member’s conduct constitutes an offense under the UCMJ, and that the admissible
evidence will probably be sufficient to obtain and sustain a conviction when viewed objectively by an unbiased
factfinder.
DAC-IPAD Recommendation 50: The Secretary of Defense require all special trial counsel and judge advocates
who advise convening authorities to receive training on the newly established prosecution standards in Appendix
2.1 of the Manual for Courts-Martial. The training shall emphasize the principle that referral is appropriate only if
these special trial counsel and advisors believe that the Service member’s conduct constitutes an offense under the
UCMJ, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction when viewed
objectively by an unbiased factfinder.
A decision to prosecute represents a determination that the fundamental interests of society require the application
of the law to a particular set of circumstances. It is a recognition that serious criminal violations must be prosecuted,
and that prosecution entails profound consequences for the accused, crime victims, and their families whether or not
a conviction ultimately results.115 Whether to prosecute an accused is arguably one of the most consequential decisions
for both the accused and the victim in the criminal justice process.116 Charging decisions in most civilian jurisdictions
reflect subjective judgment rooted in evidentiary and ethical standards on which prosecutors rely to promote the reasoned
exercise of prosecutorial authority and contribute to the fair, evenhanded administration of criminal law.117
The written standards promulgated by government prosecutorial agencies and attorneys’ legal organizations, as well as
commentary from state and federal prosecutors, indicate that to commence prosecution, jurisdictions overwhelmingly
require a finding of sufficiency of the evidence to secure a conviction in addition to probable cause. Two independent
studies by military justice and criminal law experts extensively reviewed the military’s referral process and concluded that
a finding of probable cause alone is not sufficient to expose a Service member to criminal trial at a general court-martial.
These groups have urged that the Department of Justice’s standard—the admissible evidence will probably be sufficient to
obtain and sustain a conviction—should apply uniformly across the Services for the referral of cases to courts-martial.118
115 Justice Manual, supra note 38, at § 9-27.001.
116 See generally National District Attorneys Association, National Prosecution Standards 52 (4th ed. Jan. 2023), Part IV, Pretrial Considerations
(“Commentary: It could be argued that screening decisions are the most important made by prosecutors in the exercise of their discretion in the search
for justice. The screening decision determines whether or not a matter will be absorbed into the criminal justice system.”).
117 Justice Manual, supra note 38, at § 9-27.001.
118 JPP Report, supra note 69, at 8 (The JPP Subcommittee recommends that Article 33, UCMJ, case disposition guidance for convening authorities and
staff judge advocates require the following standard for referral to court-martial: the charges are supported by probable cause and there is a reasonable
likelihood of proving the elements of each offense beyond a reasonable doubt using only evidence likely to be found admissible at trial.); DAC-IPAD
Report on Investigative Case File Reviews, supra note 18, at 16 (DAC-IPAD Recommendation 32: Congress amend Article 34, UCMJ, to require
22
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
Recently, the Joint Explanatory Statement accompanying the FY22 NDAA emphasized that referral authorities should,
as a threshold matter, evaluate whether the evidence will likely be sufficient to obtain and sustain a conviction in a trial
by court-martial.119 In its 2021 report, the IRC supported the recommendation to replace convening authorities with
experienced judge advocates by emphasizing that prosecutors, as opposed to convening authorities who are not lawyers,
“abide by their ethical guidelines for initiating and declining prosecution.”120 The IRC further reasoned that the principles
of federal prosecution—which include an assessment of the sufficiency of the evidence before prosecution begins—are
necessary as a matter of fundamental fairness.121 Citing no benefit to either victims or defendants when the military
pursues a case that has no reasonable probability of evidence sufficient to support a conviction, the IRC cautioned—
as does the DAC-IPAD—that the result of such pursuit is an erosion of confidence and trust in the military justice
system.122
The DAC-IPAD’s recommendation to establish uniform prosecution standards in Appendix 2.1 of the Manual for
Courts-Martial is the result of several years of gathering data, engaging with stakeholders, studying the pretrial processing
of military sexual assault cases, participating in robust discourse on the dual purpose of military law in current times, and
anticipating the historic implementation of the Offices of Special Trial Counsel. The DAC-IPAD resoundingly concludes
that weak pretrial procedures and a lack of uniform prosecution standards directly contribute to dismissals and acquittals
in sexual offense cases.
This targeted recommendation to establish prosecution standards will cause minimal disruption to a system repeatedly
subjected to recent reforms. Moreover, this change is necessary for the overall health of the military justice system. These
reforms are especially critical to the success of a new system under which prosecutors—not commanders—will often
be decision makers. At Appendix G of this report, the DAC-IPAD proposes uniform prosecution standards with new
language for Appendix 2.1 that promotes the reasoned exercise of prosecutorial authority to align with the standards for
federal civilian prosecutors referenced in Articles 33 and 36, UCMJ.
Systemic Problems Caused by a Lack of Prosecution Standards
Problems for the Accused. The IRC concluded that there is a problem with trust in the military justice system, owing
in part to the manner in which sexual assault cases are referred to trial.123 Some military commanders seek to “send a
message” that they are tough on crime by sending procedurally deficient cases to trial, without regard for the negative
impact on both victims and accused, and resulting in high acquittal rates and significant numbers of dismissals.124
This practice can result in wrongful convictions or convictions that do not survive appellate review. Moreover, Service
members accused in such cases may experience severe, lifelong consequences owing to the stigma and collateral effects
of felony charging decisions and a criminal trial. While a victim’s interest in prosecution is a factor to be considered, it
should not outweigh the government’s ethical obligation to refer charges only if there is evidence sufficient to obtain and
the staff judge advocate to advise the convening authority in writing that there is sufficient evidence to obtain and sustain a conviction on the charged
offenses before a convening authority may refer a charge and specification to trial by general court-martial.); see also MJRG Report, supra note 3, at 338
(Recommendation 33.2: Create a new statutory provision requiring the establishment of non-binding guidance taking into account the Principles of
Federal Prosecution in the U.S. Attorney’s Manual[.]).
119 Joint Explanatory Statement to the FY22 NDAA, supra note 76, at 88.
120 IRC Report, supra note 4, at 21.
121 Id.
122 Id.
123 Id. at 11.
124 Id.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
sustain a conviction. The current probable cause standard for referral in Article 34, UCMJ, is a low barrier to prosecution
that jeopardizes the concept of fair and evenhanded administration of justice and risks exposing innocent Service
members to felony criminal liability.
Problems for Victims. Victims also are strongly affected, sometimes in negative ways, by prosecutorial decisions. Victims
benefit from a system that delivers justice in the form of a conviction. However, trying cases without sufficient evidence
can raise false expectations in those who bravely and openly testify at a public trial.125 Trial preparation often requires
victims to recite many times the details of their assault. Trial dates often change, thus delaying resolution for victims. And
at trial, victims may find the process itself daunting. The experience of an acquittal may cause a victim to regret reporting,
may cause emotional devastation, and may discourage them and others from reporting other crimes.126 Some victims
may reasonably prefer to pursue a non-judicial disposition in lieu of trial. Therefore, amending the preliminary hearing
process, and establishing prosecution standards, would mitigate the unintended harms caused by prosecuting cases
without sufficient evidence to obtain a conviction.
Problems for the System Overall. A lack of uniform prosecution standards also generates unwarranted disparities among
the Services, leading to an appearance of bias in favor of victims over the accused. In testimony before the DAC-IPAD,
the Army, Marine Corps, and Navy acknowledged the importance of assessing the sufficiency of the evidence, but
stated that in practice, the victim’s preference is a highly influential factor in referral decisions. Air Force representatives
explained that if a victim expresses a desire for a court-martial and the probable cause standard is met, the convening
authority will most likely refer the case to trial, regardless of the sufficiency of the evidence.127
The DAC-IPAD’s extensive data analysis of adult-victim penetrative sexual offenses demonstrates that prosecuting cases
with insufficient evidence to obtain and sustain a conviction more often than not ends in dismissal or acquittal. Although
low conviction rates are not the only metric for evaluating prosecutions, these statistics erode public trust in the process of
military justice. In 2020, the DAC-IPAD published data for convictions and acquittals in adult-victim penetrative sexual
offense cases with a final disposition in FY17. The study found that in 31.1% of cases that were tried to verdict on a
penetrative sexual offense charge, the evidence in the case materials reviewed did not meet the sufficiency of the evidence
threshold.128 The data highlight what military justice practitioners have been telling the DAC-IPAD and other federal
advisory committees and independent review commissions for years: in the military justice system, commanders will send
cases to trial without sufficient evidence in the interests of good order and discipline—but to the detriment of procedural
justice. On the basis of its study, the DAC-IPAD determined that probable cause was not an adequate standard for
referring a case to trial. These groundbreaking data led the DAC-IPAD to conclude that sending a case to court-martial
in the absence of sufficient admissible evidence to obtain and sustain a conviction has significant negative implications for
the accused, the victim, and the military justice process.129
125 Id., App. B at B-53.
126 SVC/VLC Responses to DAC-IPAD RFI Set 11 (May 15, 2019) (Responses to A.Q1a, from the Special Victim’s Counsel, or Victim’s Legal Counsel,
Organizations for the Army, Navy, Marine Corps, and Air Force.). See DAC-IPAD Summary of Interviews with Victims’ Counsel (May 2020–Jan.
2021). On file with staff.
127 Transcript, DAC-IPAD Public Meeting 105–6 (Aug. 23, 2019).
128 DAC-IPAD Report on Investigative Case File Reviews, supra note 18, at 13. The government obtained a conviction on the penetrative sexual
offense in 2 out of 73 cases, one of which was later overturned on appeal because the evidence was factually insufficient.
129 Id.
24
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
Benefits of Establishing Uniform Prosecution Standards in Appendix 2.1
The DAC-IPAD’s recommendation to establish uniform prosecution standards in Appendix 2.1 sends a strong policy
message that special trial counsel and judge advocates who advise convening authorities should use these standards to
promote the reasoned exercise of prosecutorial discretion. The proposed standards contemplate language for Appendix
2.1 that achieves parity with the sufficiency of the evidence standard from the Department of Justice’s Federal Principles
of Prosecution. This fundamental guiding principle requires that a prosecutor believe that the admissible evidence will
probably be sufficient to obtain and sustain a conviction before a case should be referred to a court-martial. Finally, as a
matter of policy and emphasis, the DAC-IPAD finds it unnecessary to repeat the phrase “non-binding” in the title.
Article 33 of the UCMJ itself is simply called “Disposition Guidance,” and the first sentence in Appendix 2.1 states that
the guidance is non-binding.
The DAC-IPAD’s proposed draft for uniform prosecution standards in Appendix 2.1, found at Appendix G,
would enhance the referral standard before a case is sent to a court-martial and would assist judge advocates and
commanders in applying the new prosecution standards. These uniform prosecution standards offer more nuanced
guidance for the reasoned exercise of prosecutorial discretion and achieve the intent of Articles 33 and 36, UCMJ,
to conform to the practice of the United States District Courts. Referral decisions should be grounded in a technical
analysis of the admissibility of evidence and quantum of proof needed to convict in a criminal trial. This focused
evidentiary analysis reflects overarching ethical considerations, concerns about the fundamental fairness of the
system, and the recognition of how significantly the initiation of criminal charges affects a Service member.
Critically, the new language safeguards against impermissible considerations influencing referral decisions, such as the
possible biases of a factfinder or the effect of any such biases on the likelihood of conviction. For example, the decision
to charge and try a sexual assault should be based on the prosecutors’ evaluation of the evidence and an estimation of
whether an unbiased jury should convict.
The decision to prosecute must be based on the intrinsic value of the case and evaluated independently of the actual trial
result. The question “Can the government win this case?” differs greatly from “Can the admissible evidence possessed by
the government convince an unbiased factfinder to convict?” In any event, the next question for evaluation is “Should the
government try this case?” Thus, after assessing the sufficiency of the evidence, the referral authority should then consider
the other 13 factors listed in paragraph 2.1, as applicable, when deciding whether to expose a Service member to a court-
martial. For the Office of Special Trial Counsel, Congress specified that commanders of the victim and accused should
have the opportunity to provide their candid thoughts to the special trial counsel prior to case disposition; however,
the advice is not binding on the special trial counsel.130 And in cases in which the convening authority still exercises
discretion, the staff judge advocate offers advice on how those 13 factors inform the decision whether to refer a case to
a court-martial. Ultimately, the promulgation of uniform prosecution standards enhances confidence on the part of the
public, of crime victims, and of individual defendants that important prosecutorial decisions will be made rationally and
objectively on the merits of each case.131
130 FY22 NDAA, supra note 31, at § 532(a)(5) (Policies applicable to each OSTC shall “provide that commanders of the victim and the accused in a case
involving a covered offense shall have the opportunity to provide input to the special trial counsel regarding case disposition, but that the input is not
binding on the special trial counsel.”).
131 Justice Manual, supra note 38, at § 9-27.001.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Recommended Training on Uniform Prosecution Standards
The DAC-IPAD’s recommendation for uniform prosecution standards in Appendix 2.1 of the Manual for Courts-
Martial should be accompanied by training for every person involved in the military justice system, including convening
authorities. This training must emphasize the principle that referral to court-martial is appropriate only if judge advocates
and convening authorities believe that the Service member’s conduct constitutes an offense under the UCMJ, and that
the admissible evidence will probably be sufficient to obtain and sustain a conviction when viewed objectively by an
unbiased factfinder. The training guidance attached to this report at Appendix H offers an outline of topics and themes
for use in training modules.
26
RECOMMENDATIONS FOR ARTICLE 32, UCMJ, AND THE SECRETARY OF DEFENSE’S
DISPOSITION GUIDANCE IN APPENDIX 2.1, MANUAL FOR COURTS-MARTIAL
CONCLUSION
The investigation, prosecution, and defense of sexual misconduct in the military will improve with the DAC-IPAD’s
recommended changes to Article 32, with the establishment of uniform prosecution standards, and with enhanced
training requirements. The DAC-IPAD’s data-driven recommendations are critical both for the new special trial counsel
and for the military justice system overall.
These reforms do not require radical change. The purpose, scope, and function of the Article 32 preliminary hearing
will remain the same under these proposals. Barring continued prosecution after a preliminary hearing finding of no
probable cause will align military practice with foundational principles of federal civilian practice. It also aligns with
the recommendation to adopt uniform prosecution standards. If sufficient evidence to convict is needed before referral
to court-martial, then the system will benefit from a preliminary hearing that effectively screens out cases that cannot
pass the low evidentiary threshold of probable cause. These targeted reforms will enhance uniformity, reliability, and
consistency in military pretrial procedures. The following graphic depicts the different evidentiary standards that should
apply at the different stages of the military justice system:
Preliminary Referral to
Preferral: hearing: court-martial: Court-martial:
Belief that the Probable Sufficient Proof beyond a
facts are true cause admissible reasonable
and constitute evidence to obtain doubt
an offense under and sustain a
the UCMJ conviction
The time is right for the Department of Defense to establish uniform prosecution standards. These changes will provide
special trial counsel with an effective set of rules for the prosecution of serious crimes in the military. They are designed
to ensure fairness and justice, thus enhancing good order and discipline in the Armed Forces. The DAC-IPAD anticipates
that these recommendations, once implemented, will instill confidence and trust that the military justice system is
governed by principled decision making that achieves the objectives of military law.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
APPENDIXES
28
APPENDIXAPPENDIX
A. DOD A. DOD GENERAL COUNSEL TASKING MEMO TO EVALUATE OFFICES OF SPECIAL TRIAL COUNSEL
GENERAL COUNSEL TASKING MEMO TO
EVALUATE OSTC
Appendix A. DoD General Counsel Tasking Memo to Evaluate OSTC
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
1600 DEFENSE PENTAGON
WASHINGTON, D.C. 20301-1600
MAY 1 0 l022
GENERAL COUNSEL
MEMORANDUM FOR CHAIR, DEFENSE ADVISORY COMMITTEE ON
INVESTIGATION, PROSECUTION, AND DEFENSE OF
SEXUAL ASSAULT IN THE ARMED FORCES (DAC-IPAD)
SUBJECT: DAC-IPAD Advice on Policy Development, Workforce Structure, and
Implementation of Best Practices for the Military Departments' Offices of Special
Trial Counsel
As requested in your letter of April 27, 2022, I task the DAC-IPAD with advising the
Secretary of Defense and me on policy development, workforce structure, and implementation of
best practices for the Military Departments' Offices of Special Trial Counsel. The Department of
Defense would benefit greatly from the advice of the DAC-IPAD, whose members possess
extraordinary expertise regarding the organization and operation of offices devoted to complex
prosecutions, concerning the Offices of Special Trial Counsel. Advising the Department
regarding the Offices of Special Trial Counsel is a core function of the DAC-IPAD. Please
provide such advice on an ongoing basis.
Consistent with your request, I have asked the Secretaries of the Military Departments to
provide the appropriate civilian officials, supported by uniformed subject matter experts, to
appear at the DAC-IPAD's next public meeting.
I reiterate my thanks to you and to all of the DAC-IPAD's members for assisting the
Department of Defense in improving our sexual assault response systems.
Caroline Krass
General Counsel
A-1
APPENDIX APPENDIX B. INDEPENDENT REVIEW COMMISSION RECOMMENDATIONS 1.7 A–F (IRC REPORT EXCERPT)
B. INDEPENDENT REVIEW COMMISSION
RECOMMENDATIONS 1.7 A-F (IRC REPORT EXCERPT)
Appendix B. Independent Review Commission Recommendations 1.7 a-f (IRC Report Excerpt)
HARD TRUTHS AND THE DUTY TO CHANGE:
RECOMMENDATIONS FROM THE INDEPENDENT REVIEW COMMISSION ON
SEXUAL ASSAULT IN THE MILITARY, APPENDIX B, pp. 52–53
IRC Recommendation 1.7: Modify the UCMJ
The UCMJ should be modified in several key areas to increase uniformity, reliability and
consistency of the military justice system, thus benefiting the victim, the alleged offender, and
the command. Because sexual assault victims can experience re-victimization and trauma in the
processing of their cases, and because a significant number of these victims have lost their trust
in the military justice system, these recommended changes are uniquely important in sexual
assault cases.
1.7 a: The Secretary of Defense should direct the DAC-IPAD to study Article 32
Preliminary Hearings;
1.7 b: The Secretary of Defense should direct the DAC-IPAD to study Article 34,
Advice to Convening Authority Before Referral to Trial;
1.7 c: The UCMJ should be amended to establish a preponderance of the evidence
standard for non-judicial punishment;
1.7 d: Article 25 of the UCMJ should be amended to establish random selection of
panel members;
1.7 e: The Secretary of Defense should direct the Services to establish funding appropriate
for defense counsel control of their own resources; and
1.7 f: Article 128b of the UCMJ should be amended to include dating violence.
Rationale for these Changes: Increase Uniformity, Reliability, and Consistency of the Military
Justice System
The IRC is recommending two studies and several amendments to the UCMJ in order to increase
uniformity, reliability, and consistency of the military justice system, thus benefiting the victim,
the accused, and the command.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Appendix B. Independent Review Commission Recommendations 1.7 a-f (IRC Report Excerpt)
IRC Recommendation 1.7 a:
The Secretary of Defense Should Direct the DAC-IPAD to Study Article 32
Preliminary Hearings
Before a General Court-Martial can proceed, 10 U.S. Code § 832, requires that unless the
accused waives this right, an Article 32 Preliminary Hearing must be held before referral of
charges for trial by General Court-Martial. The Article 32 hearing is conducted by a hearing
officer who determines whether or not there is probable cause to believe that the accused
committed the charged offense. Currently, the decision of this Article 32 hearing is not binding
on the GCMCA. The GCMCA can refer a case to a General Court-Martial even if the hearing
officer at the Article 32 Preliminary Hearing determined that there was no probable cause to
believe that the accused committed the charged offense(s) if the Staff Judge Advocate advises
that there is probable cause.
Numerous stakeholders with significant military justice experience including defense counsel,
trial counsel, and military judges agreed that it is not fair to the administration of justice for a
GCMCA to proceed with a court-martial despite a no probable cause finding. This can be
damaging to sexual assault victims, who often suffer through the process unaware that there is no
chance of winning a conviction in their cases. At the same time, the IRC wants to ensure that
provable, but difficult, cases are not prevented from proceeding due to the opinion of a solitary
preliminary hearing officer, who may not have the military justice experience necessary to make
such findings and credibility determinations.
To accommodate both of these concerns, the IRC is recommending that a study by conducted to
determine if making the Article 32 hearing officer’s no probable cause decision binding would
promote justice, fairness, and efficiency. The IRC assumes that this will have some effect on the
level of military justice experience expected of a preliminary hearing officer, and the study
should include an assessment of whether military judges and military magistrates should be the
Article 32 preliminary hearing officers.
B-2
B–2
APPENDIX B. INDEPENDENT REVIEW COMMISSION RECOMMENDATIONS 1.7 A–F (IRC REPORT EXCERPT)
Appendix B. Independent Review Commission Recommendations 1.7 a-f (IRC Report Excerpt)
IRC Recommendation 1.7 b:
The Secretary of Defense Should Direct the DAC-IPAD to Study Article 34,
Advice to Convening Authority Before Referral to Trial
After the Article 32 Preliminary hearing is held, but before the GCMCA formally refers the case,
the GCMCA must comply with the guidance outlined in Article 34. This Article requires the
staff judge advocate to certify the presence of several elements, including whether there is
probable cause to believe that the accused committed the charged offense, before the convening
authority can proceed with the referral of charges. Currently, Article 34 does not contain the
standard language that governs other federal prosecutors. Specifically, the principles of federal
prosecution require that in order to pursue a case, the prosecutor must believe that the admissible
evidence will probably be sufficient to obtain and sustain a conviction ([U.S. Dept. of Justice,
Justice Manual] 9-27.220). This same threshold requirement should be included in Article 34
both as a matter of fundamental fairness and in the interest of the efficient administration of
justice. Neither the victim nor the defendant benefits when the military pursues a case when there
is no reasonable probability that the evidence will be sufficient to obtain or sustain a conviction.
Furthermore, confidence and trust in the military justice system is undermined when cases are
pursued when there is not reasonable chance of success.
It is important to emphasize that the proposed Article 34 language regarding the sufficiency of
the evidence would be determined by the staff judge advocate, not by the preliminary hearing
officer, judge, or any other party. Furthermore, the inclusion of this requirement should not
inhibit prosecutors from pursuing difficult cases or prevent them from trying cases which do not
have the benefit of corroborating evidence. A single witness who can testify to all the elements
of the case, and who the trier of fact believes is credible, is sufficient to obtain and sustain a
conviction. Lastly, it is important to note that at the time of the Article 34 decision, the
prosecutor does not need to have in their possession all the evidence upon which they will rely at
trial. Rather, the prosecutor must only have a reasonable and good faith belief that the needed
evidence will be available and admissible at the time of trial.
B-3
B–3
APPENDIX C. NATIONAL DEFENSE
APPENDIX C. AUTHORIZATION
NATIONAL DEFENSE AUTHORIZATION ACT
ACT FOR FISCAL YEAR 2022,
EXCERPT WITH JOINT EXPLANATORY STATEMENT
FOR FISCAL YEAR 2022, EXCERPT WITH JOINT EXPLANATORY
Appendix C. National Defense Authorization Act for FY 2022 Excerpt
STATEMENT
Provision creating the position of special trial counsel
S.1605, SEC. 531, 117th Congress – SPECIAL TRIAL COUNSEL.
SEC. 531. SPECIAL TRIAL COUNSEL.
(a) IN GENERAL. —Subchapter V of chapter 47 of title 10, United States Code, is amended by
inserting after section 824 (article 24 of the Uniform Code of Military Justice) the following new
section:
‘‘§ 824a. Art 24a. Special trial counsel
‘‘(a) DETAIL OF SPECIAL TRIAL COUNSEL. —Each Secretary concerned shall
promulgate regulations for the detail of commissioned officers to serve as special trial counsel.
‘‘(b) QUALIFICATIONS. —A special trial counsel shall be a commissioned officer who—
‘‘(1)(A) is a member of the bar of a Federal court or a member of the bar of the
highest court of a State; and
‘‘(B) is certified to be qualified, by reason of education, training, experience, and
temperament, for duty as a special trial counsel by—
‘‘(i) the Judge Advocate General of the armed force of which the officer is a member;
or
‘‘(ii) in the case of the Marine Corps, the Staff Judge Advocate to the Commandant
of the Marine Corps; and
‘‘(2) in the case of a lead special trial counsel appointed pursuant to section 1044f(a)(2)
of this title, is in a grade no lower than O–7.
‘‘(c) DUTIES AND AUTHORITIES. —
‘‘(1) IN GENERAL. —Special trial counsel shall carry out the duties described in
this chapter and any other duties prescribed by the Secretary concerned, by regulation.
‘‘(2) DETERMINATION OF COVERED OFFENSE; RELATED CHARGES. —
‘‘(A) AUTHORITY. —A special trial counsel shall have exclusive authority to
determine if a reported offense is a covered offense and shall exercise authority over any such
offense in accordance with this chapter. Any determination to prefer or refer charges shall not act
to disqualify the special trial counsel as an accuser.
‘‘(B) KNOWN AND RELATED OFFENSES. —If a special trial counsel
determines that a reported offense is a covered offense, the special trial counsel may also
exercise authority over any offense that the special trial counsel determines to be related to the
covered offense and any other offense alleged to have been committed by a person alleged to
have committed the covered offense.
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Appendix C. National Defense Authorization Act for FY 2022 Excerpt
‘‘(3) DISMISSAL; REFERRAL; PLEA BARGAINS. —Subject to paragraph (4),
with respect to charges and specifications alleging any offense over which a special trial counsel
exercises authority, a special trial counsel shall have exclusive authority to, in accordance with
this chapter—
‘‘(A) on behalf of the Government, withdraw or dismiss the charges and
specifications or make a motion to withdraw or dismiss the charges and specifications;
‘‘(B) refer the charges a specification for trial by a special or general court-martial;
‘‘(C) enter into a plea agreement; and
‘‘(D) determine if an ordered rehearing is impracticable.
‘‘(4) BINDING DETERMINATION. —The determination of a special trial counsel
to refer charges and specifications to a court-martial for trial shall be binding on any applicable
convening authority for the referral of such charges and specifications.
‘‘(5) DEFERRAL TO COMMANDER OR CONVENING AUTHORITY.—
If a special trial counsel exercises authority over an offense and elects not to prefer charges and
specifications for such offense or, with respect to charges and specifications for such offense
preferred by a person other than a special trial counsel, elects not to refer such charges and
specifications, a commander or convening authority may exercise any of the authorities of such
commander or convening authority under this chapter with respect to such offense, except that
such commander or convening authority may not refer charges and specifications for a covered
offense for trial by special or general court-martial.’’.
(b) TABLE OF SECTIONS AMENDMENT. —The table of sections at the beginning of
subchapter V of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice),
is amended by inserting after the item relating to section 824 (article 24) the following new item:
‘‘824a. Art 24a. Special trial counsel.’’.
(c) REPORT REQUIRED. —
(1) IN GENERAL. —Not later than one year after the date of the enactment of this
Act, each Secretary concerned shall submit to the Committees on Armed Services of the Senate
and the House of Representatives a report setting forth the plan of the Secretary for detailing
officers to serve as special trial counsel pursuant to section 824a of title 10, United States Code
(article 24a of the Uniform Code of Military Justice) (as added by subsection (a) of this section).
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APPENDIX C. NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2022,
EXCERPT WITH JOINT EXPLANATORY STATEMENT
Appendix C. National Defense Authorization Act for FY 2022 Excerpt
(2) ELEMENTS. —Each report under paragraph (1) shall include the following—
(A) The plan of the Secretary concerned—
(i) for staffing billets for—
(I) special trial counsel who meet the requirements set forth in section
824a of title 10, United States Code (article 24a of the Uniform Code of Military Justice)
(as added by subsection (a) of this section); and
(II) defense counsel for cases involving covered offenses; and
(ii) for supporting and ensuring the continuing professional development of
military justice practitioners.
(B) An estimate of the resources needed to implement such section 824a (article 24a).
(C) An explanation of other staffing required to implement such section 824a
(article 24a), including staffing levels required for military judges, military magistrates, military
defense attorneys, and paralegals and other support staff.
(D) A description of how the use of special trial counsel will affect the military
justice system as a whole.
(E) A description of how the Secretary concerned plans to place appropriate emphasis
and value on litigation experience for judge advocates in order to ensure judge advocates are
experienced, prepared, and qualified to handle covered offenses, both as special trial counsel and
as defense counsel. Such a description shall address promotion considerations and explain how the
Secretary concerned plans to instruct promotion boards to value litigation experience.
(F) Any additional resources, authorities, or information that each Secretary
concerned deems relevant or important to the implementation of the requirements of this title.
(3) DEFINITIONS. —In this subsection—
(A) The term ‘‘Secretary concerned’’ has the meaning given that term in section 101(a)
of title 10, United States Code.
(B) The term ‘‘covered offense’’ has the meaning given that term in section 801(17)
of title 10, United States Code (as added by section 533 of this part).
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Appendix C. National Defense Authorization Act for FY 2022 Excerpt
Joint Explanatory Statement
Accompanying the National Defense Authorization Act for FY 2022 [Excerpt]
Advice to convening authority before referral for trial (sec. 537)
The House bill contained a provision (sec. 538) that would amend Article 34 of the
Uniform Code of Military Justice (10 U.S.C 834) to permit referral of charges and specifications
over which a special victim prosecutor exercises authority by only the special victim prosecutor
or by the convening authority where the charges and specifications do not allege a special victim
offense or where a special victim declines to refer charges.
The Senate amendment contained a similar provision (sec. 541) that would further amend
Article 34 to require that referral to a general court-martial may only be made when a staff judge
advocate, or a special victim prosecutor with respect to charges and specifications over which the
special victim prosecutor may exercise authority, determines that there is sufficient admissible
evidence to obtain and sustain a conviction on the charged offense.
The agreement includes the Senate provision with an amendment that would strike the
language requiring sufficient admissible evidence, and that would make other technical changes.
We emphasize that when determining whether to refer charges and specifications to a court-
martial for trial, the convening authority, or, when applicable, the special trial counsel, should
first evaluate whether admissible evidence will likely be sufficient to obtain and sustain a
conviction in a trial by court-martial.
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APPENDIX D. REQUEST FOR INFORMATION AND SERVICE NARRATIVE RESPONSES
APPENDIX D. REQUEST FOR INFORMATION AND SERVICE
NARRATIVE RESPONSES
Appendix D. Request for Information and Service Narrative Responses
Request for Information
Articles 32 & 34 Policy Questions
1 Should the determination of an Article 32 preliminary hearing officer that a preferred
specification under a charge lacks probable cause prohibit referral of that specification to
court-martial pending reconsideration of any new evidence?
Why or why not?
2 If the Article 32 preliminary hearing officer’s determination posed a legal bar to referral
of the affected specification and/or charge because it lacks probable cause, what are your
Service’s recommendations or recommended requirements for a reconsideration system?
Please address the effect a reconsideration process may have on military speedy trial
considerations.
3 Please provide your Service’s position on whether military judges or military magistrates
should be required to serve as preliminary hearing officers in all Article 32 hearings.
4 Please provide your Service’s position on whether military judges or military magistrates
should be required to serve as preliminary hearing officers only for Article 32 hearings
involving certain specified offenses.
Please identify recommended qualifying offenses for this requirement.
5 Does your Service currently have a military magistrate program?
Why or why not?
If so, what are the requirements (duties and qualifications) for a military magistrate and
would you recommend changing the requirements if military magistrates were used for
preliminary hearings?
6 Absent a requirement that the Article 32 preliminary hearing officer’s determination of
no probable cause for a specification is binding on the convening authority pending
reconsideration of any new evidence, what changes, if any, should be made to Article 32
or R.C.M. 405 to address the common viewpoint that the hearings today do not serve a
sufficiently useful purpose to outweigh the delay they impose on the processing of cases?
7 What is your Service’s position on whether referral of charges to a general court-martial
should be precluded absent a determination by the staff judge advocate that the
admissible evidence would likely be sufficient to obtain and sustain a conviction?
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Appendix D. Request for Information and Service Narrative Responses
In addition to any general comments in response to this study, we request narrative responses to
the following questions, including whether and how the answers may change depending on who
makes the preferral and referral decisions: lawyers or commanders.
Question 1. Should the determination of an Article 32 preliminary hearing officer that a
preferred specification under a charge lacks probable cause prohibit referral of that
specification to court-martial pending reconsideration of any new evidence? Why or why not?
Army:
The Army provided the following comment [applicable to Questions 1-7] in addition to the
answers below:
The questions and response below presuppose no mandated legislative changes to the UCMJ and
specifically Article 32 and Article 34 in the current FY22 National Defense Authorization Act.
Both the Senate and House versions of the NDAA contain provisions that would require a
military magistrate or judge to serve as a preliminary hearing officer. The current legislation will
also remove commanders from some subset of military criminal offenses and place the decision
authority in an independent judge advocate. The final details of changes to the UCMJ will have
a substantial impact on the value of the Article 32 and potential changes or improvements.
[Questions 1 answer] No. The Preliminary hearing officer’s (PHO) finding of a lack of probable
cause should not be binding on convening authorities. A PHO finding that there is no probable cause
for a charge should not be binding because of the inherent limitations of the Article 32 hearing.
Based on the clear intent of Congress, today’s preliminary hearing is not a comprehensive
evaluation of all the available evidence, nor a tool to identify cases in which a conviction may
not be assured. First, Article 32 itself imposes significant limitations on the scope of the hearing:
it is “limited” to its four statutory purposes, and the victim has a right to decline to testify.
Second, evidence continues to develop in complex cases up until and through the trial itself. Any
recommendation based on an incomplete examination of the facts and a lack of opportunity to
assess the credibility of central witnesses, particularly the victim, cannot provide the convening
authority with the same comprehensive advice provided by the Staff Judge Advocate.
In addition, a Staff Judge Advocate typically brings more than 20 years of experience, supported
by the expertise and experience of other senior judge advocates, including the Chief of Justice
and Special Victim Prosecutor. Preliminary hearing officers, however, rarely have the
experience of the Staff Judge Advocate. Consequently, the Staff Judge Advocate is in the best
position to provide a fair, reasoned, and experienced recommendation based on all the facts and
evidence in a case. Indeed, the study by the Defense Advisory Committee on the Investigation,
Prosecution and Defense of Sexual Assault in the Military (DAC-IPAD) identified cases in
which a PHO found no probable cause, the Staff Judge Advocate disagreed, and the accused was
subsequently convicted.
The stated purpose of the “new” Article 32 preliminary hearing is to gather sufficient
information on probable cause to transmit to the Staff Judge Advocate, who then makes the
binding determination of whether there is probable cause prior to referral. This process is similar
to the presentation of evidence to a grand jury and a grand jury’s probable cause determination.
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Appendix D. Request for Information and Service Narrative Responses
Unfortunately, the rebranding of the Article 32 proceedings from an “investigation” to a
“preliminary hearing” has created confusion on this point.
There is now a misconception that the Article 32 proceedings are a judicial hearing similar to the
“Preliminary Hearing” under Rule 5.1 of the Federal Rules of Criminal Procedure. This is not an
accurate comparison of the two systems, as Rule 5.1 preliminary hearings are for cases where an
arrest is effectuated before an indictment, to ensure judicial oversight where a grand jury’s
probable cause determination is bypassed before an arrest.
Making the preliminary hearing officer’s determination of probable cause binding on the
convening authority asks too much of a procedure that performs a very limited statutory
function. Reaching, or not reaching, a probable cause threshold early in a case’s development
should never be dispositive as to the viability of the case. Furthermore, such a change may have
the unintended consequence of a coercive effect on victims who would otherwise exercise a right
to not testify at the preliminary hearing, directly undermining the intent of Congress.
The combination of the PHO’s thorough report and the Staff Judge Advocate’s review – based
on that officer’s years of practice and expertise – ensures that the convening authority is
provided the best possible disposition advice.
Should the referral authority change from commander to an experienced senior judge advocate,
substituting the judge advocate referral authority for staff judge advocate leads to the same
conclusion—PHO determinations should not be binding on any subsequent referral authority.
Navy:
We do not support the proposition that a preliminary hearing officer’s (PHO) determination of
probable cause be binding on the referral disposition authority. In current practice, prior to a case
reaching a preliminary hearing, the case is reviewed by at least one experienced trial counsel
who is supervised by one or more senior judge advocates who are often Military Justice
Litigation Qualified (MJLQ). In addition, Article 34, UCMJ, requires that, prior to referral of a
charge and specification to a general court-martial, a staff judge advocate (SJA) must advise a
convening authority in writing, that there is probable cause to believe that the accused committed
the offense under the UCMJ. Given the role of experienced trial counsel, combined with the
SJA’s statutory obligation under Article 34 to provide written advice to convening authorities
concerning probable cause, the PHO’s opinion concerning probable cause should not be binding
on the general court-martial convening authority (GCMCA). The PHO’s advice provides
valuable insight into the charges and the evidence from the perspective of a third, non-interested
party. The proposal places too much authority in the hands of a single judge advocate (the PHO)
who may lack the necessary information and perspective to make binding decisions concerning
the determination of probable cause.
Marine Corps:
No. Probable cause determinations by Article 32 Preliminary Hearing Officers (PHO) should
continue to be non-binding upon referral authorities (regardless of whether convening authorities
(CA) or senior judge advocates (JA)).
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Appendix D. Request for Information and Service Narrative Responses
The current adversarial process for an Article 32 preliminary hearing by an impartial judge
advocate, preceded in many cases by a comprehensive case analysis memorandum (CAM) with
multiple layers of review, and followed by review and advice by the cognizant staff judge
advocate (SJA), serves as adequate protection against unwarranted prosecutions.
The current model contemplates the referral decision, at least for the most serious cases, to be
informed by the recommendations of several military justice professionals: the trial counsel,
regional trial counsel, litigation attorney advisor, and ultimately, the SJA. It is counterintuitive to
vest in the PHO the authority to prevent referral of a charge to a court-martial over the advice of
others with more significant knowledge and involvement in a case and often more military
justice experience. The referral authority—whether commanders in the current model or senior
JAs in possible future models—are better positioned to make the final determination with all of
the available information and evidence at their immediate disposal.
Should the probable cause determination by the PHO become binding, it would be incumbent to
ensure that only the most trained, experienced, and qualified JAs serve as PHOs with this
expanded, binding authority. The Marine Corps would be required to consider implementing a
policy that only military judges—trained and accustomed to making essential findings of fact
and conclusions of law binding upon the parties, subject to appeal—may be detailed as a PHO,
straining current manpower and resourcing.
Additionally, if the PHO’s probable cause determination is binding, there must be an avenue of
recourse for the government, but not just for reconsideration of new evidence as posed in the
question. This is further discussed in response to the next question.
Air Force:
A determination by a preliminary hearing officer that a specification lacks probable cause should
not prohibit referral of that specification to court-martial. Unlike grand juries in the civilian
system, the determination of whether to refer a case to trial is made by a single, albeit neutral,
legal officer. Because reasonable minds may disagree on whether evidence meets a probable
cause standard, limiting the convening authority’s discretion would preclude the Air Force’s
ability to base referral decisions on a holistic view of each case with input from various
perspectives, including the Convening Authority’s Staff Judge Advocate, judge advocates
prosecuting the case, and inputs from victims and the accused—inputs that may come before or
after the preliminary hearing has closed. Should the determination of the preliminary hearing
officer that the probable cause standard has not been met be made binding, sufficient safeguards
must be implemented to prevent injustice. Those safeguards must allow the convening authority
to overrule the preliminary hearing officer in certain circumstances. This answer is applicable if
either commanders or judge advocates make preferral and referral decisions.
Coast Guard:
No. The determination of the Article 32 Preliminary Hearing Officer (PHO) should remain a
recommendation and not be binding on the referral authority. In many contexts, the most
consequential witness, the victim, defined broadly in accordance with Article 32(h), UCMJ, has
a statutory right to refuse to testify before the PHO. Additionally, if the testimony of a civilian
witness is crucial to a particular charge, that civilian witness is not subject to compulsory process
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Appendix D. Request for Information and Service Narrative Responses
for purposes of an Article 32 preliminary hearing. Accordingly, the Article 32 preliminary
hearing, as currently designed through statute and regulation, is not intended to be a
comprehensive evaluation of all available evidence.
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Appendix D. Request for Information and Service Narrative Responses
Question 2. If the Article 32 preliminary hearing officer’s determination posed a legal bar to
referral of the affected specification and/or charge because it lacks probable cause, what are
your Service’s recommendations or recommended requirements for a reconsideration system?
Please address the effect a reconsideration process may have on military speedy trial considerations.
Army:
If the Article 32 PHO’s determination precludes referral, a commander should have the authority
to re-open or start the Article 32 process to present any additional relevant evidence to establish
probable cause.
In addition to all the reasons discussed above, the Army does not support this procedural change
as the requirement to re-open a preliminary hearing will unnecessarily delay the progression of a
case. One of the primary victim complaints about the military justice system is the length of time
it takes to proceed to trial. Adding another time-consuming hurdle to the process would further
frustrate the process, and the impact on good order and discipline.
Navy:
We do not support the proposition that a preliminary hearing officer’s (PHO) determination of
probable cause be binding on the referral disposition authority. That said, if that were to become
policy, we would strongly recommend adopting a reconsideration process and new rules
governing excludable delay.
Procedural rules permitting reconsideration exist in most federal and civilian jurisdictions,
providing trial counsel with a limited opportunity to overcome a finding of no probable cause and
a similar process should be considered for military determinations if the PHO determinations
become binding. The reconsideration process will delay proceedings and take time and resources.
As a result, new rules governing excludable delay will be required.
Additionally, planned revisions to RCM 309 under consideration by the President in Prospective
Executive Order 21-1 provide victims the power to appeal decisions made by the preliminary
hearing officer to a military judge.
Marine Corps:
If a PHO’s finding of no probable cause is binding upon the referral authority (regardless of
whether a CA or JA), there should be avenues of recourse, but not just for reconsideration as
posed in the question.
A reconsideration process should be implemented by amending R.C.M. 405, generally in line
with the process for reconsideration of continued pretrial confinement in R.C.M. 305(i)(2)(E). If
the PHO finds there is not probable cause to believe that the accused committed the offense
charged, the PHO shall reconsider that determination upon request of the government based upon
any significant evidence not previously considered by the PHO. This would require reconvening
the hearing, and the accused would enjoy the same rights during reconsideration as during the
initial hearing.
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Appendix D. Request for Information and Service Narrative Responses
In the event that the government believes the PHO made an erroneous determination despite
considering all of the evidence, a military judge shall review the PHO’s probable cause
determination for an abuse of discretion, upon motion for appropriate relief. Additionally, given
that evidence may continue to develop in complex cases with each passing day, the military
judge shall conduct a de novo review of probable cause upon motion by the government.
Implementing this review process would require amendment of Article 30a and R.C.M. 309 to
broaden the scope of permitted pre-referral proceedings.
Any effect this process has on military speedy trial considerations is minimal. R.C.M. 707 permits
convening authorities and military judges to grant excludable delay for good cause. Additionally,
R.C.M. 707 may be amended to specifically account for the time to seek review of a PHO’s
adverse probable cause determination, in the nature that the Rule currently accounts for
Government appeals. For 6th Amendment and Article 10 purposes, delay while seeking review of
the PHO’s probable cause determination—made in good faith and not solely for the purpose of
delay—should be viewed neutrally in most cases when conducting a Barker analysis. An accused
eager to get the process moving may waive the preliminary hearing pursuant to R.C.M. 405(m).
Air Force:
Should a decision by the preliminary hearing officer that probable cause does not exist be made
binding, the government should be allowed to seek reconsideration from the preliminary hearing
officer when new or additional evidence becomes available. Additionally, the Staff Judge Advocate
for the convening authority, or the senior special victims’ prosecutor (under the construct proposed
in the FY22 NDAA), should also possess independent authority to exercise their legal judgment to
overrule the preliminary hearing officer when necessary to prevent injustice.
Coast Guard:
Assuming the PHO’s determination of lack of probable cause operates as a bar to referral, there
are several options available. Currently, the discussion portion of to R.C.M. 405(m) authorizes
the convening authority to reopen the Article 32. The convening authority can direct that the
Article 32 be reopened to provide additional evidence/testimony to meet the evidentiary
deficiencies articulated by the PHO as the basis for lack of probable cause. (Again, if the basis of
the PHO’s determination is, for example, that the PHO could not properly ascertain for herself
the credibility of the victim, a statutory change to Article 32 would be necessary to require the
victim to testify). The convening authority can direct that the Article 32 to reopened based on the
advice of her staff judge advocate pursuant to R.C.M. 406(b)(4). Currently, R.C.M. 405(l)(2)(H)
contains the regulatory requirement that the PHO must specifically articulate her reasoning for
why there is sufficient probable cause for each charged offense. In this regard, the reverse must
also be required: specific reasons for why an offense is lacking in probable cause. If there is no
statutory or regulatory bar for the Government to acquire the evidence to meet the evidentiary
deficiencies, the Government can request that the convening authority reopen the Article 32
hearing and request that the PHO reconsider her prior determination.
Another option could be to amend R.C.M. 405 to specifically authorize the PHO to hold her
determination in abeyance for a set period of time in order to allow either party, or the special
victims’ counsel, to request reconsideration similar to R.C.M. 905(f). The reconsideration period
would be set by the Secretary concerned.
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Appendix D. Request for Information and Service Narrative Responses
For purposes of how a reconsideration process would affect military speedy trial considerations,
again there are several options. The applicable regulatory rule, which applies in all cases, R.C.M.
707, authorizes the convening authority to exclude delay. See R.C.M. 707(c). The convening
authority, within her sole discretion, may exclude delay to allow time to acquire additional
evidence for the PHO’s consideration. An additional option could be for the convening authority
to dismiss the case without prejudice pending additional evidence. In that case, the charges
would be dismissed, and if re-preferred, a new 120-day period would begin when charges “are
preferred anew.” R.C.M. 707(b)(3)(A)(ii)(I). If the convening authority elects to dismiss the
charges pending additional evidence, in the event the accused is in confinement or subject to
pretrial restraint, the accused would likely have to be released pending charges being preferred
anew. See R.C.M. 707(a)(2).
The statutory speedy trial requirement in Article 10, UCMJ, should also be considered to the
extent that appellate courts have held that the Article 10, UCMJ, speedy trial legal test is separate
from the R.C.M. 707 speedy trial test. In this regard, Article 10, UCMJ, only applies to accused
who have been placed in pretrial confinement. Assuming that -- despite the recent changes to
Article 10, UCMJ, specifically directing the President to prescribe speedy trial regulations --
appellate courts still regard the “Article 10” speedy trial test as separate from R.C.M. 707 test,
the Government would have to take “immediate steps” to try the accused “or dismiss the charges
and release” the accused. Article 10(b)(1)(B). Presumably, if the convening authority elects to
dismiss the charges pending additional evidence, the accused would have to be released from
confinement.
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APPENDIX D. REQUEST FOR INFORMATION AND SERVICE NARRATIVE RESPONSES
Appendix D. Request for Information and Service Narrative Responses
Question 3. Please provide your Service’s position on whether military judges or military
magistrates should be required to serve as preliminary hearing officers in all Article 32 hearings.
Army:
The current standard of using judge advocates as preliminary hearing officers is sufficient. The
requirement for a military judge or magistrate would add very little value to the system given the
protections and decision making authorities in place for all cases within the military justice
system. Judge advocates meet the minimum requirement for Article 27(b), UCMJ, certification
to serve as a PHO, which is satisfied by completion of the Judge Advocate Officer Basic Course.
Certification ensures that the judge advocate has received training on the probable-cause
standard and the military justice process. More specifically, whenever possible, Staff Judge
Advocates generally recommend only field grade officers with prior military justice experience
as a PHO. In some units, reserve-component Judge Advocates, often with extensive criminal law
experience, are also available to serve as PHOs. Limiting the PHO role to military judges and
magistrates will likely result in staffing shortages and conflicts of interest in referred courts-
martial that will only further delay proceedings. The Army currently uses 25 military judges to
adjudicate the approximately 700-800 cases arraigned per year. These military judges are not
stationed at every location, but travel throughout the Army to oversee cases. Utilizing military
judges at Article 32 Preliminary Hearing officers will disqualify them from further service on the
case and require a second military judge in every case where a military judge serves as the
preliminary hearing officer.
Navy:
The Navy does not believe it is necessary for military magistrates or military judges to serve as
PHOs in all Article 32 Preliminary Hearings. The current practice using JAGs is sufficient.
Multiple provisions of the UCMJ and RCM provide victims and accused service members a
robust set of procedures, checks, and protections that would only be minimally improved by the
involvement of the judiciary during the preliminary investigation stage. Articles 6b and 32,
UCMJ, and Rule for Courts-Martial (RCM) 405 currently provide significant protections for
victims, including the right to decline the invitation to testify at the hearing. Planned revisions to
RCM 309 under consideration by the President in Prospective Executive Order 21-1 provide
victims the power to appeal decisions made by the preliminary hearing officer to a military judge.
If the decision is made to require military magistrates or judges to preside over Article 32
Preliminary Hearings, the Navy strongly recommends that Article 32 Preliminary Hearings
continue to be held remotely, consistent with Proposed Executive Order 21-1. The Navy also
recommends that additional billets for military magistrates or judges be authorized. The Navy
would not be able to make that shift without increased end strength supporting additional judicial
billets.
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Appendix D. Request for Information and Service Narrative Responses
Marine Corps:
The Marine Corps is not in favor of requiring military judges or military magistrates—which the
Marine Corps does not currently have—to serve as PHOs in all Article 32 hearings. Doing so
would place an intolerable strain upon the judiciary and create avoidable conflict issues,
particularly at installations with only one military judge. However, should probable cause
determinations by PHOs become binding upon referral authorities, the Marine Corps would be
required to consider implementing a policy that military judges serve as PHOs in order to ensure
the most trained and qualified personnel are making those grave determinations. This policy may
be implemented without amendment to Article 32 and R.C.M. 405.
This answer does not depend on who makes the referral decision.
Air Force:
There should not be a requirement for a military judge or military magistrate to serve as a
preliminary hearing officer in all Article 32 hearings. Rather, military judges should serve as
preliminary hearing officers as warranted on a case-by-case basis. As the Air Force does not utilize
magistrates, providing the Services flexibility to assess which cases warrant the expertise of a
military judge would ensure legal resources are being properly utilized and avoid significantly
limiting the Air Force trial judiciary’s ability to preside over courts-martial. This answer is
applicable if either commanders or judge advocates make preferral and referral decisions.
Coast Guard:
It is unnecessary to require either a military judge of military magistrate to be required to serve
as the PHO in all Article 32, UCMJ, hearings. Based on the current statutory requirement that the
PHO be, absent extraordinary circumstances, a judge advocate equal or senior in grade to the
detailed trial and defense counsel, this is sufficient for purposes of serving as a PHO. In certain
circumstances it may be appropriate for a military judge to be detailed as the PHO, but that
should be the exception, driven by unique facts, rather than the default rule.
If the question assumes the premise in Question 1 that the PHO’s determination is binding,
having a military judge making the determination might be prudent. However, due to certain
constraints in Article 32(d)(3), UCMJ, that provides all victims with the statutory right not to
testify at the preliminary hearing, detailing a military judge to every Article 32 preliminary
hearing would, in most cases, not “move the evidentiary needle” and would arguably be an
inappropriate use of judicial assets.
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APPENDIX D. REQUEST FOR INFORMATION AND SERVICE NARRATIVE RESPONSES
Appendix D. Request for Information and Service Narrative Responses
Question 4. Please provide your Service’s position on whether military judges or military
magistrates should be required to serve as preliminary hearing officers only for Article 32
hearings involving certain specified offenses. Please identify recommended qualifying offenses
for this requirement.
Army:
The Services should have discretion to identify which cases merit a military judge or magistrate
serving as a PHO. Historically, military judges or senior judge advocates serve on cases
involving the death penalty or major public interest. The current rules allow the commander in
coordination with the servicing SJA to determine on a case-by-case basis which cases require a
higher level of expertise.
Navy:
As in the answer to Policy Issue 3, even if military judges or magistrates were only required to
preside over preliminary hearing in cases involving special victim offenses, the number of
military judges or military magistrates would have to be increased. Special victim offense cases
represent a large proportion of military justice cases likely requiring Article 32 hearings.
Marine Corps:
As stated above, requiring military judges or military magistrates to serve as PHOs would place
an intolerable strain upon the judiciary and create avoidable conflict issues, even for hearings
involving limited qualifying offenses. The services should maintain flexibility to implement
policies concerning the qualifications of PHOs, and can implement policies without amendment
to Article 32 and R.C.M. 405. However, generally speaking, there may be a need for more
experienced PHOs in special victim cases, defined by the Marine Corps as cases involving
alleged violations of Articles 117a, 118, 119, 119a, 120, 120a (for stalking offenses committed
prior to 1 January 2019), 120b, 120c, 125 (with a child or forcible), 128 or 128b (domestic
violence involving aggravated assault or child abuse), 132 (when the retaliation was for reporting
a sex-related offense), 134 (child pornography or assault with intent to commit the previously
listed articles), or 80 (attempts to commit the previously listed articles) of the UCMJ.
This answer does not depend on who makes the referral decision.
Air Force:
There should not be a requirement for a military judge or military magistrates to serve as a
preliminary hearing officer for Article 32 hearings involving certain specified offenses.
Assuming these qualified offenses correlate to the qualifying offenses described in the House
and Senate FY22 NDAA bills, such qualifying offenses will encompass the vast majority of
general courts-martial for the Air Force. Military judges should serve as preliminary hearing
officers as warranted on a case-by-case basis. As the Air Force does not utilize magistrates,
providing the Services flexibility to assess which cases warrant the expertise of a military judge
would ensure legal resources are being properly utilized and avoid significantly limiting the Air
Force trial judiciary’s ability to preside over courts-martial. This answer is applicable if either
commanders or judge advocates make preferral and referral decisions.
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Coast Guard:
Similar to the response in Question 3, the most value a military judge can bring to the Article 32
process would be within the context of highly complex cases and cases that require a nuanced
assessment of the credibility of a victim or witness. Rather than coming up with a list of offenses,
each Service should have the flexibility to request appointment of a military judge in appropriate
cases. For example, a homicide case may not necessarily require the expertise and experience of a
military judge; however, an alleged homicide that takes place as part of an alleged violation of the
law of war may. See Article 18(a), UCMJ. Additionally, cases such as spying, or espionage, or
offenses that embrace national security matters within the meaning of R.C.M. 401(d) and R.C.M.
407(b) may benefit from having a military judge detailed as the PHO. Again, the Secretary
concerned should have the flexibility to make that determination based on the unique set of facts.
The second category of cases are cases in which the experience and expertise of a military judge
could be helpful would be cases in which assessment of the credibility of a victim as a percipient
witness would be crucial to the truth-seeking process. Unless Congress amends Article 32 to require
victims to testify, the perceived value of having a military judge detailed as the PHO in these types
of cases would likely add little value to the process at the expense of scarce judicial assets.
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APPENDIX D. REQUEST FOR INFORMATION AND SERVICE NARRATIVE RESPONSES
Appendix D. Request for Information and Service Narrative Responses
Question 5. Does your Service currently have a military magistrate program? Why or why
not? If so, what are the requirements (duties and qualifications) for a military magistrate and
would you recommend changing the requirements if military magistrates were used for
preliminary hearings?
Army:
Yes, The Army currently utilizes a military magistrate program. The Army utilizes part time
military magistrates as neutral officers responsible for probable cause determinations, search
authorizations and pre-trial confinement hearings. These officers are generally O-3s and O-4s
within the local Staff Judge Advocate’s office. The part-time military magistrate program is
supervised by the trial judiciary and is an additional duty. Most installations do not have a
sufficient case load to staff a full-time magistrate. If the requirement for a preliminary hearing
expands to require a military magistrate the Army will likely grow its part time military
magistrate population to assist the trial judiciary in covering this added responsibility.
Navy:
The Navy does not currently have a military magistrate program. Recently, after contemplating
the establishment of a military magistrate program as authorized by the UCMJ, the Navy decided
to re-establish special court-martial judge positions in the two busiest fleet locations. The UCMJ
qualifications for military magistrate and military judge are substantially similar. However,
magistrates may only be utilized to resolve certain pretrial matters, to perform other duties of a
nonjudicial nature with the consent of the parties, and to preside over cases referred to special
court-martial. The military magistrate program was rejected in favor of additional special court-
martial judges after considering the relatively limited authority of a military magistrate,
compared to the more expansive authority granted to a military judge under the UCMJ.
Article 26a, UCMJ, details the qualifications of a military magistrate. As previously noted, a
military judge, with the consent of the parties, may designate a military magistrate to preside
over a military judge alone special court-martial under Article 16(c)(2)(A), to preside over
certain pre-referral proceedings, and to be assigned to perform other duties of a nonjudicial
nature.
If military magistrates were used for preliminary hearings, the requirement contained in Article
62(d), UCMJ, might be reconsidered. Currently, an appeal by the United States from an order or
ruling of a military magistrate must first be considered by a military judge prior to the appeal
being considered by a Court of Criminal Appeals. The additional proceeding could further delay
the case and potentially impact military speedy trial considerations.
Marine Corps:
No, the Marine Corps does not have a military magistrate program. Current manpower
limitations preclude implementation of a magistrate program. Furthermore, Article 26a requires
the Judge Advocate General to establish qualifications for military magistrates, and the Secretary
concerned to prescribe regulations governing military magistrates, neither of which have
occurred within the Department of the Navy.
This answer does not depend on who makes the referral decision.
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Appendix D. Request for Information and Service Narrative Responses
Air Force:
The Air Force does not have a military magistrate program. The Air Force JAG Corps is not
currently manned or organized to carve out an independent and dedicated function of military
magistrates. Our most experienced military justice practitioners are assigned as military judges,
senior prosecutors, senior defense counsel, special victims’ counsel, and in military justice policy
roles. Additionally, the Air Force has not identified an operational need for such a program. The
duties of military magistrates currently contemplated by the law are adequately otherwise
performed by military judges. This answer is applicable if either commanders or judge advocates
make preferral and referral decisions.
Coast Guard:
The Coast Guard does not have a military magistrate program. There is insufficient military
justice throughput to justify the creation of a military magistrate program within the Coast
Guard. In FY21, the Coast Guard convening authorities directed Article 32 preliminary hearings
in 14 cases and the Coast Guard tried 12 general courts-martial.
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APPENDIX D. REQUEST FOR INFORMATION AND SERVICE NARRATIVE RESPONSES
Appendix D. Request for Information and Service Narrative Responses
Question 6. Absent a requirement that the Article 32 preliminary hearing officer’s
determination of no probable cause for a specification is binding on the convening authority
pending reconsideration of any new evidence, what changes, if any, should be made to
Article 32 or R.C.M. 405 to address the common viewpoint that the hearings today do not serve
a sufficiently useful purpose to outweigh the delay they impose on the processing of cases?
Army:
The preliminary hearing in its current form clearly reflects congressional intent and the plain
language of the statute. Any changes made through policy, such as allowing the PHO to call
witnesses, should be minor. The premise that there is a “common viewpoint” that the hearings do
not serve a sufficiently useful purpose is contradicted by the record developed by DAC-IPAD.
All testimony before the DAC-IPAD established that all parties, including the prosecution and
defense, found value in the current process and believed that the current process satisfied the
statutory language. The data collected by DAC-IPAD further supported the testimony of Service
representatives, as the preliminary hearing is waived in only a small portion of cases. Any
anecdotal discussions that would support a finding of a “common viewpoint” that the
preliminary hearing is not serving the purpose set forth of the statute are not part of the current
record, so are difficult to address. While many practitioners may recall the benefits of the former
Article 32 hearing with victim testimony, cross-examination and other substantive requirements,
Congress has made clear their intent for the purpose of a preliminary, limited hearing with a low
legal standard and additional rights for victims.
Navy:
The Navy recommends additional study into the advisability of revising Articles 32 and 34 once
current legislative reform efforts have been resolved.
Marine Corps:
Since the rules of evidence largely do not apply at preliminary hearings, a PHO may consider
hearsay and other evidence that may not be admissible at trial in determining whether there is
probable cause. This may inform the SJA and CA’s assessment of whether the bar for referral is
met, but is minimally helpful in assessing the prospects for conviction at trial. Accordingly, the
utility of preliminary hearings would be increased with a requirement that PHOs make a non-
binding assessment of whether the admissible evidence would likely be sufficient to obtain and
sustain a conviction.
Three primary benefits may be achieved with this change: First, the evidence would be more
closely scrutinized, which inures to the benefit of both sides. Second, SJAs and CAs would
receive a more exacting assessment from an impartial judge advocate of whether referral is
advisable. Third, the parties and the PHO may all be incentivized to do more with respect to
calling witnesses and presenting evidence.
Further, in order to inject more rigor into the PHO’s analysis, thus creating a more useful product
for SJAs and CAs, R.C.M. 405 should be amended to require PHOs to articulate the factors,
from MCM Appendix 2.1 or elsewhere, that support the recommended disposition and that
weigh in favor of or against referral.
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Appendix D. Request for Information and Service Narrative Responses
This answer does not depend on who makes the referral decision, though these changes may be
less useful in a model in which a JA makes the referral decision.
Air Force:
Preliminary hearings allow a neutral and detached legal officer to review a case and permit the
accused to present evidence before a case is referred to trial. There is no indication in the Air
Force that preliminary hearing requirements cause any significant delays in the overall
processing of cases. This answer is applicable if either commanders or judge advocates make
preferral and referral decisions.
Coast Guard:
Pending legislation proposes the transfer of the authority to make disposition decisions in
military justice cases from the convening authority (i.e. commander) to an independent judge
advocate. The extent and scope of these prosecutorial authorities are yet to be determined.
Pending the outcome of this year’s NDAA, any recommended policy changes would be
premature.
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APPENDIX D. REQUEST FOR INFORMATION AND SERVICE NARRATIVE RESPONSES
Appendix D. Request for Information and Service Narrative Responses
Question 7. What is your Service’s position on whether referral of charges to a general court-
martial should be precluded absent a determination by the staff judge advocate that the
admissible evidence would likely be sufficient to obtain and sustain a conviction?
Army:
The Army opposes a change that would preclude referral to courts-martial absent a determination
by the staff judge advocate that the admissible evidence would be sufficient to sustain a
conviction. The non-binding disposition guidance is now part of the Manual for Courts-Martial,
and provides a useful, consistent framework for discussions with convening authorities. This
guidance ensures that commanders and judge advocates are considering a uniform set of factors
in reaching their disposition decisions.
At the outset, the source of the “sufficient to obtain and sustain a conviction” proposal, Section
9-27.220 of the Department of Justice, Justice Manual, is a non-statutory, non-legally binding
factor. The legal standard for initiating a prosecution remains probable cause. Similarly, the
Secretary of Defense, pursuant to Article 33, UCMJ, promulgated non-binding disposition
guidance. As set forth in the non-binding disposition guidance, the likelihood of conviction and
the victim’s preference are both considered in developing a recommendation to prefer a charge.
The weight of those two factors is not prescribed and depends on the case’s facts and the other
factors. In addition, preparing a case for trial continues the development of the evidence, and an
early call on a case, for which there is probable cause, that appears too difficult to obtain a
conviction initially may not reflect the case’s strength at trial.
Specifically, in some cases for which there is probable cause, it is appropriate to pursue a charge
even when the likelihood of conviction may appear to be lower than in other cases or when a victim
may not be as committed to the prosecution. For example, the community’s safety may require
action in a multiple-victim case even if a victim may not be as committed to the prosecution.
Making the likelihood of conviction the determinative factor in every case would appear to
eschew the truth-seeking function of a public criminal trial. Trials are not, and should not, be
treated as a formality on the road to a conviction. In order to maintain good order and discipline,
it is the public process, not the result, that drives the utility of a court-martial.
Ultimately, convening authorities must weigh all the relevant factors in light of the case’s
strength and the victim’s preference to arrive at the best possible decision to further the interests
of justice for the community and good order and discipline within the unit.
Advocacy organizations concur. A recent New York Times article, “Nobody Believed Me: How
Rape Cases Get Dropped” dated July 18, 2021, refers to a study commissioned by the Manhattan
District Attorney of the sex crime bureau by Aequitas, a non-profit that provides prosecutors
with resources on violence against women. Aequitas specifically found that Manhattan sex
crimes prosecutors improperly based decisions on the possibility of winning cases, and stated
that “likelihood of conviction should not be a determining factor.”
An adoption of the “sufficient evidence to sustain a conviction” would seem to contradict the
expert advice provided by organizations like Aequitas, and would of course have the practical
result of sending fewer cases to trial, which will further undermine public confidence in the
military justice system.
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Appendix D. Request for Information and Service Narrative Responses
Navy:
The Navy supports the addition to the referral standard of "evidence sufficient to obtain and
sustain a conviction," in order to align with the standard in federal prosecutions and other non-
military jurisdictions.
The Navy does not believe that the standard should be binding on the convening authority, but
instead should be advisory in the same manner as the other Article 34 advice requirements.
Marine Corps:
The SJA should not be required to determine that the admissible evidence would likely be
sufficient to obtain and sustain a conviction as a requisite for referral. Probable cause should
remain the minimum bar for referral with the heightened standard being one of many factors to
consider when making a disposition decision, consistent with MCM Appendix 2.1.
Although not a requisite for referral, whether the admissible evidence would likely be sufficient
to obtain and sustain a conviction is a weighty factor. Pursuant to MCO 5800.16, Volume 16,
Paragraph 050304, in special victim cases, the trial counsel, regional trial counsel, and litigation
attorney advisor assess in writing “the admissibility of evidence and likelihood of obtaining a
sustainable conviction,” and they generally recommend against referral if that standard is not
met. Trial counsel are the most knowledgeable of the state of the evidence in a case and are best
positioned to scrutinize the weight of it in assessing this heightened standard. Trial counsel’s
assessment in this regard ultimately informs the SJA’s advice to the convening authority. The
SJA independently assesses probable cause, but is not well positioned in all cases to
independently assess the heightened standard to the degree necessary as a gatekeeping function
for referral. Further, many SJAs throughout the Marine Corps are lacking the level of current
military justice experience required to make this binding assessment.
This answer does depend on who makes the referral decision. Article 34 in general would seem
not to apply in a model in which a JA makes the referral decision.
Air Force:
While the Air Force does not believe the assessment of the staff judge advocate that the
admissible evidence would likely be sufficient to obtain a sustain a conviction should be binding,
we concur that Article 34, UCMJ, should be amended as follows: (1) to require the convening
authority’s staff judge advocate to make a recommendation as to whether there is admissible
evidence sufficient to obtain and sustain a conviction; and (2) to require the convening authority
to consider that recommendation, separate and apart from the determinations required by Article
34(a)(1)(A)-(C).
These recommended changes ensure the convening authority receives the experienced assessment
of legal counsel, but retains flexibility. Such flexibility is necessary for a number of reasons.
Pre-trial advice is accomplished, in general court-martial cases, after the receipt of the preliminary
hearing officer’s Article 32 report; it is, by law, an assessment fixed in time and takes into
account the information available. As such, only minimal evidence may be known to the parties
(the government – the convening authority and prosecutor – and the defense).
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APPENDIX D. REQUEST FOR INFORMATION AND SERVICE NARRATIVE RESPONSES
Appendix D. Request for Information and Service Narrative Responses
This is for a number of reasons: (1) The defense is not obligated to present a case at an Article 32
preliminary hearing and may elect not to do so; (2) discovery obligations are not triggered
pursuant to R.C.M. 701 and 703 until after referral of charges; and (3) victim input for referral,
alternate dispositions, and plea agreements are not often or required to be obtained until after the
preliminary hearing (see, e.g., Article 6b, UCMJ). Further, a victim may decide to participate after
an Article 32 preliminary hearing or may decide not to participate at such time. Moreover,
additional matters, such as discovery of new evidence by law enforcement, the government, or the
defense, may further bolster the evidence in a case or may undermine it in such a manner that the
recommendation is no longer accurate. Preserving flexibility ensures the convening authority has
the ability to make the appropriate referral decision in a case, which may include victim input and
consideration of evidence not presented as part of the preliminary hearing officer’s report.
Coast Guard:
The recommendation of the SJA as to whether -- at the time of referral -- there is admissible
evidence to obtain and sustain a conviction is certainly a factor that is considered, consistent with
the discussion section to R.C.M. 406(a). Similarly, the discussion portion to R.C.M. 601(d)(1)
requires the convening authority to make the same determination as part of making her referral
decision. Within the context of sex-related offenses, the two most important factors of whether to
proceed is first the willingness of the victim to participate in the military justice process, and
second whether there is sufficient evidence to obtain and sustain a conviction. These factors are
subject to change during the process. For example, the Government receives additional
admissible evidence or victims may change their minds about participating in the military justice
process as the trial date approaches.
Accordingly, and provided there is sufficient probable cause to refer the charged offenses, the
determination of the staff judge advocate that the admissible evidence is likely sufficient to
obtain and sustain a conviction should be a factor, but not be a requirement to refer, or to bar
from referring, the charged offenses.
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APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
Courts-Martial Pretrial
Processing Data
for Fiscal Years 2014 Through 2021
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
CONTENTS
I. INTRODUCTION ................................................................................................................... 1
II. METHODOLOGY .................................................................................................................. 3
III. DATA CONCERNING ADULT-VICTIM PENETRATIVE SEXUAL OFFENSES
FOR WHICH AN ARTICLE 32 PRELIMINARY HEARING OFFICER FOUND
NO PROBABLE CAUSE: FY14 THROUGH FY21 ............................................................... 4
IV. DATA CONCERNING ALL UCMJ OFFENSES FOR WHICH AN ARTICLE 32
PRELIMINARY HEARING OFFICER FOUND NO PROBABLE CAUSE: FY21 .............. 15
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FOR FISCAL YEARS 2014 THROUGH 2021
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
I. INTRODUCTION PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
Section I provides a summary of observations and analysis from the FY14–FY21 pretrial processing data.
Section II outlines the methodology for this supplemental report.
COURTS-MARTIAL
Section III contains PRETRIAL
5 figures and 5 tables depicting PROCESSING
the outcomes of DATA
FY14–FY21 cases in which an Article 32
preliminary hearing officer (PHO) determined there was no probable cause (PC) for the charged sexual assault
FOR
offenses. FISCAL YEARS 2014 THROUGH 2021
Section IV contains 14 figures and 14 tables depicting the outcomes of FY21 cases in which an Article 32 PHO
I. INTRODUCTION
determined there was no PC for any offense charged under the Uniform Code of Military Justice (UCMJ)
(not limited to sexual assault offenses).
Section I provides a summary of observations and analysis from the FY14–FY21 pretrial processing data.
Section II outlines the methodology for this supplemental report.
Section III contains 5 figures and 5 tables depicting the outcomes of FY14–FY21 cases in which an Article 32
preliminary hearing officer (PHO) determined there was no probable cause (PC) for the charged sexual assault
offenses.
Section IV contains 14 figures and 14 tables depicting the outcomes of FY21 cases in which an Article 32 PHO
determined there was no PC for any offense charged under the Uniform Code of Military Justice (UCMJ)
(not limited to sexual assault offenses).
Summary of observations and analysis from the FY14–FY21 pretrial processing data:
Article 32 no-probable-cause determinations and case outcomes:
• Article 32 PHOs found no PC for a penetrative sexual offense (PSO) charge in a minority of cases
(15% to 22%) completed in FY14–FY21 (Table 3).
• For FY21 cases, PHOs found no PC for a PSO charge at a lower rate (8%) than for other UCMJ offenses
(21%) (Tables 10a-2 and 10a-3).
•Summary
On average, conveningand
of observations authorities
analysis dismissed PSO chargespretrial
from the FY14–FY21 consistent with thedata:
processing Article 32 PHO no-PC
determination(s) in a majority of the Navy (65%), Marine Corps (68%), and Air Force (72%) cases,
but in a minority of Army cases (34%)3 (Table 4).
Article 32 no-probable-cause determinations and case outcomes:
• Article 32 PHOs found no PC for a penetrative sexual offense (PSO) charge in a minority of cases
(15% to 22%) completed in FY14–FY21 (Table 3).
• For FY21 cases, PHOs found no PC for a PSO charge at a lower rate (8%) than for other UCMJ offenses
(21%) (Tables 10a-2 and 10a-3).
• On average, convening authorities dismissed PSO charges consistent with the Article 32 PHO no-PC
determination(s) in a majority of the Navy (65%), Marine Corps (68%), and Air Force (72%) cases,
but in a minority of Army cases (34%)3 (Table 4).
1 See Studies of Article 32 Preliminary Hearings and Article 34 Advice Letters (Jan. 25, 2022).
2 Hard Truths and the Duty to Change: Recommendations from the Independent Review Commission on Sexual Assault in the Military,
Recommendations 1.7a–f, App. B at 52 (July 2021) [IRC Report], available at: https://media.defense.gov/2021/Jul/02/2002755437/-1/-1/0/
IRC-FULL-REPORT-FINAL-1923-7-1-21.PDF/IRC-FULL-REPORT-FINAL-1923-7-1-21.PDF.
3 Because the Coast Guard has a low number of cases, its cases are not included in these observations or analyses.
1
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1 See Studies of Article 32 Preliminary Hearings and Article 34 Advice Letters (Jan. 25, 2022).
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
• For FY21 cases, convening authorities dismissed charges for which the Article 32 PHO found no PC at a
lower rate (45%) in cases involving any UCMJ offense than in PSO cases (62%) (Tables 11a and 11b).
• Since FY19, 13 trials on a no-PC PSO charge have resulted in a not guilty verdict (Table 5).
• Since FY19, only one military accused has been convicted of a no-PC PSO charge (Table 5).
• For FY21 cases involving a PSO offense, only one accused was convicted of a charge for which the
Article 32 PHO found no PC (Table 5). By comparison, across all FY21 cases,4 35 cases resulted in a
conviction of a no-PC charge (Tables 12a and 12b).
• For FY21 cases involving a PSO offense, in 85 of 60 cases (13%) referred after the Article 32 PHO found
no PC, the accused was found not guilty. For FY21 cases involving any offense, in 276 of 193 cases (14%)
referred after the Article 32 PHO found no-PC, the accused was found not guilty (Tables 11a, 11b, 12a,
and 12b).
Article 32 preliminary hearing waivers:
• The proportion of Article 32 preliminary hearings waived in PSO cases has stayed relatively constant for
cases completed in and after FY16, ranging from 21% to 26% (Table 1).
• The percentage of Article 32 preliminary hearings waived in FY21 PSO cases (23%) is somewhat lower than
in FY21 cases involving all offenses (31%) (Table 7).
Article 32 preliminary hearing officers:
• For FY21 cases, 54 of 88 (61%) of the Navy’s Article 32 preliminary hearings were presided over by judge
advocates in the grades of O-5 or O-6, most of whom were assigned to the Article 32 preliminary hearing
unit7 (Table 9a).
• For FY21 cases, 34 of 174 (20%) of the Air Force Article 32 preliminary hearings involving at least one
PSO had military judges serving as the PHO (Table 9b).
Article 32 preliminary hearings and witness testimony:
• Since FY16,8 in PSO cases, the proportion of Article 32 preliminary hearings with witness testimony has
steadily declined, from 62% in FY16 to 17% in FY21 (Table 2).
• For FY21 cases, only 18% of Article 32 preliminary hearings involved witness testimony (Table 8a).
4 In 18 of the 35 cases, the accused pled guilty to the no-PC offense pursuant to a PTA.
5 In 3 of the 8 cases, the not guilty findings were pursuant to a PTA.
6 In 7 of the 27 cases, the not guilty findings were pursuant to a PTA.
7 See discussion of the Navy’s preliminary hearing unit, infra Section IV.E.
8 By FY16, all Article 32 hearings had transitioned from investigations to preliminary hearings, which gave greater latitude for consideration of
documentary evidence and eased requirements for witness testimony. See infra note 12.
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APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
II. METHODOLOGY
To collect and analyze sexual assault courts-martial processing data, the DAC-IPAD staff submitted requests for
information (RFIs) to the Military Services asking for charging documents, pretrial allied papers, and official trial
results for cases completed in FY14 to FY21 involving a preferred charge of adult-victim sexual assault,9 as well
as for all cases involving a preferred charge of any offense—including both sex offenses and non-sex offenses—
completed in FY21.10
For Section III of this supplement, the staff reviewed source documents11 from cases completed—that is, tried to
verdict or resolved by alternate means—in FY14 to FY21, in which:
• The most serious offense charged was a PSO,
• An Article 32 investigation or preliminary hearing12 was either held or waived, and
• The Article 32 PHO13 determined that PC was not established for at least one charged PSO.
If the PHO determined that PC was not established for a PSO specification, the staff recorded the ultimate
disposition of that specification. If the PHO determined that PC was established for some PSOs but not others,
the staff recorded only the disposition of the no-PC offenses. When the no-PC offense was charged in the
alternative and the PHO determined that PC existed under an alternate charging theory, the staff did not include
the case in its analysis of no-PC offenses.
Section III provides the Military Services' FY14–FY21 data in the following areas:
A. Article 32 hearings and waivers for PSO cases.
B. Witness and victim testimony in Article 32 proceedings for PSO cases.
C. Cases in which the PHO found no PC for a PSO.
D. Disposition decisions for cases in the PHO found no PC for a PSO.
E. Results of referred no-PC PSO specifications.
In Section IV, the staff used the same methodology to review cases involving all UCMJ offenses completed in FY21.
9 In this report, the terms “sexual assault” and “penetrative sexual offense” include the following UCMJ offenses involving adult victims: rape (Article
120(a)), sexual assault (Article 120(b)), forcible sodomy (Article 125), and attempts or conspiracies to commit these offenses (Articles 80 and 81). These
offenses involve a sexual act, as defined in 10 U.S.C. § 920(g)(1) (2019), as opposed to a sexual contact, as defined in 10 U.S.C. § 920(g)(2) (2019).
10 RFI at Appendix B. Although the Military Services provided cases intended to meet the criteria specified, the DLSA staff does not assert that every
responsive case was provided.
11 For each case, the staff reviewed the following documents, as applicable: the charge sheet, Article 32 report, Article 34 pretrial advice or other legal
memorandum for cases not referred to trial, alternate disposition documents, and trial result documents.
12 Before December 26, 2014, Article 32 hearings consisted of a thorough investigation concerning the truth and form of the charges. During an Article
32 investigation, witnesses, including victims, often testified under oath, and counsel for both parties could question witnesses at length about any issue
related to the case (see Appendix C for the former and current versions of Article 32).
After December 26, 2014, Article 32 hearings have consisted of a preliminary hearing narrowly focused on determining probable cause. The preliminary
hearing rules limit the powers of the hearing officer and the scope of allowable defense evidence, ease previous limitations on the use of documentary
evidence, and require the PHO’s report to include a thorough written analysis of the evidence.
For this report, the Article 32, UCMJ, changes are reflected as follows:
• All FY14 cases in this report had Article 32 investigations using the former format and procedures.
• In more than half of the FY15 cases, the Article 32 investigation format and procedures applied (286 of 451 hearings, or 63%).
• In all cases completed in and after FY16, the preliminary hearing format and procedures applied.
An IO served as the Article 32 hearing officer for FY14 cases and some FY15 cases; a PHO served for some FY15 cases and all FY16–FY21 cases.
13 For this report, “PHOs” refers to both investigating and preliminary hearing officers, as applicable.
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Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
III. DATA CONCERNING ADULT-VICTIM PENETRATIVE SEXUAL OFFENSES FOR WHICH
AN ARTICLE 32 PRELIMINARY HEARING OFFICER FOUND NO PROBABLE CAUSE:
FY14 THROUGH FY21
A. The frequency of Article 32 hearings and waivers
Figure 1 and Table 1 provide the number and proportion of Article 32 proceedings in PSO cases held and waived
in FY14 through FY21, according to the Military Service of the accused.
In FY14, when Article 32 required a thorough investigation of the charges, the defense rarely waived the Article 32
investigation for PSO cases (19 waivers in 445 cases; 4%).
When Article 32 changed from a thorough investigation to a preliminary hearing, the defense waived the Article 32
preliminary hearing in PSO cases more often (for example, in FY21: 108 waivers in 477 cases; 23%).
Notably, the proportion of hearings waived in PSO cases, across all of the Military Services, has stayed relatively
constant for cases completed in and after FY16, ranging from 21% to 26%. For the past five years, Article 32
hearing waivers occurred less frequently in the Air Force than in any other Military Service: from lowest to highest
frequency, the percentage of waivers are Air Force, 8%; Marine Corps, 19%; Coast Guard, 22%; Navy, 27%; and
Army, 32%.
FIGURE 1. NUMBER OF ARTICLE 32 PRELIMINARY HEARINGS AND WAIVERS IN PSO CASES
FY Held
FY Waived
250
200
150
100
50
0
FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY
14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21
Army Navy Marine Corps Air Force
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APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
TABLE 1. NUMBER OF ARTICLE 32 PRELIMINARY HEARINGS AND WAIVERS IN PSO CASES
Army Navy Marine Corps Air Force Coast Guard Total
FY14: waived 12 (6%) 2 (3%) 3 (4%) 1 (1%) 1 (5%) 19 (4%)
FY14: held 188 (94%) 76 (97%) 68 (96%) 76 (99%) 18 (95%) 426 (96%)
FY15: waived 34 (14%) 6 (11%) 3 (6%) 2 (2%) 2 (13%) 47 (9%)
FY15: held 207 (86%) 48 (89%) 51 (94%) 131 (98%) 14 (87%) 451 (91%)
FY16: waived 67 (31%) 17 (26%) 6 (9%) 19 (11%) 3 (23%) 112 (21%)
FY16: held 151 (69%) 49 (74%) 60 (91%) 160 (89%) 10 (77%) 430 (79%)
FY17: waived 64 (30%) 19 (29%) 7 (16%) 6 (4%) 2 (22%) 98 (21%)
FY17: held 146 (70%) 46 (71%) 36 (84%) 133 (96%) 7 (78%) 368 (79%)
FY18: waived 51 (29%) 13 (22%) 14 (34%) 5 (4%) 1 (25%) 84 (21%)
FY18: held 126 (71%) 46 (78%) 27 (66%) 116 (96%) 3 (75%) 318 (79%)
FY19: waived 47 (34%) 11 (27%) 4 (15%) 8 (6%) 1 (33%) 71 (21%)
FY19: held 91 (66%) 30 (73%) 22 (85%) 125 (94%) 2 (67%) 270 (79%)
FY20: waived 46 (43%) 4 (13%) 4 (19%) 9 (10%) 0 63 (26%)
FY20: held 60 (57%) 26 (87%) 17 (81%) 80 (90%) 1 (100%) 184 (74%)
FY21: waived 61 (33%) 21 (36%) 8 (24%) 17 (9%) 1 (14%) 108 (23%)
FY21: held 126 (67%) 38 (64%) 25 (76%) 174 (91%) 6 (86%) 369 (77%)
Total waived 382 (26%) 93 (21%) 49 (14%) 67 (6%) 11 (15%) 602 (18%)
Total held 1,095 (74%) 359 (79%) 306 (86%) 995 (94%) 61 (85%) 2,816 (82%)
Army Navy Marine Corps Air Force Coast Guard Total
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
B. Witness and victim testimony in Article 32 preliminary hearings for PSO cases
Figure 2 and Table 2 present information about the frequency with which witnesses testify at Article 32
preliminary hearings.14 Witnesses may have testified about the charged penetrative sexual offense(s) and/or
unrelated offenses. Except for FY21,15 Figure 2 and Table 2 also indicate whether one or more of the testifying
witnesses was a named victim in a PSO charge.
Since December 27, 2014, the rules governing Article 32 hearings permit the government to submit as evidence
written statements and investigative summaries in lieu of live witness testimony. Preliminary hearing officers may
not compel witnesses to testify. Victims are not required to testify at preliminary hearings, and victims who decline
are deemed unavailable.16
The proportion of Article 32 preliminary hearings in PSO cases that include witness testimony—whether for the
government or defense, concerning any offense charged—has steadily declined over the period examined:
FY14, 98%; FY16, 62%; FY17, 40%; FY18, 36%; FY19, 27%; FY20, 15%; and FY21, 17%. In FY21, only 18%
of all Article 32 preliminary hearings included, as evidence, sworn testimony from any witness (Table 8a).
FIGURE 2. FREQUENCY OF WITNESS TESTIMONY IN ARTICLE 32 PRELIMINARY HEARINGS INVOLVING A PSO
Hearings
Witness testimony
250
200
150
100
50
0
FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY
14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21
Army Navy Marine Corps Air Force
14 This information was not collected for FY15 because the DAC-IPAD was suspended in January 2021—during the collection of this information—as
part of the DoD zero-based review of all federal advisory committees.
15 This information was not collected for FY21 because of the volume of cases and the expedited time period to produce this supplement.
16 10 U.S.C. § 832(d)(3) (2021) (Article 32(d)(3), UCMJ): A victim may not be required to testify at the preliminary hearing. A victim who declines to
testify shall be deemed to be not available for purposes of the preliminary hearing.
E-8
6
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
Courts-Martial Pretrial Processing Data
PROCESSING forFOR
DATA Fiscal Years
FISCAL 2014
YEARS 2014Through
THROUGH2021
2021
TABLE 2. FREQUENCY OF WITNESS AND VICTIM TESTIMONY IN ARTICLE 32 PRELIMINARY HEARINGS INVOLVING A PSO
Army Navy Marine Corps Air Force Coast Guard Total
FY14: Hearings 188 76 68 76 18 426
FY14: W testimony 188 (100%) 70 (92%) 67 (99%) 75 (99%) 18 (100%) 418 (98%)
FY14: V testimony 176 (94%) 66 (87%) 61 (90%) 72 (95%) 16 (89%) 391 (92%)
FY15: Hearings 207 48 51 131 14 451
FY15: W testimony not available not available not available not available not available not available
FY15: V testimony 141 (68%) 30 (63%) 28 (55%) 73 (56%) 9 (64%) 281 (62%)
FY16: Hearings 151 49 60 160 10 430
FY16: W testimony 111 (74%) 26 (53%) 40 (67%) 80 (50%) 9 (90%) 266 (62%)
FY16: V testimony 43 (28%) 8 (16%) 11 (18%) 19 (12%) 1 (10%) 82 (19%)
FY17: Hearings 146 46 36 133 7 368
FY17: W testimony 66 (45%) 12 (26%) 13 (36%) 50 (38%) 7 (100%) 148 (40%)
FY17: V testimony 8 (5%) 4 (9%) 8 (22%) 6 (5%) 2 (29%) 28 (8%)
FY18: Hearings 126 46 27 116 3 318
FY18: W testimony 40 (32%) 21 (46%) 8 (30%) 45 (39%) 2 (67%) 116 (36%)
FY18: V testimony 2 (2%) 1 (2%) 1 (4%) 4 (3%) 1 (33%) 9 (3%)
FY19: Hearings 91 30 22 125 2 270
FY19: W testimony 24 (26%) 6 (20%) 2 (9%) 39 (31%) 1 (50%) 72 (27%)
FY19: V testimony 2 (2%) 1 (3%) 0 (0%) 3 (2%) 0 (0%) 6 (2%)
FY20: Hearings 60 26 17 80 1 184
FY20: W testimony 5 (8%) 4 (15%) 0 (0%) 18 (23%) 0 (0%) 27 (15%)
FY20: V testimony 0 (0%) 0 (0%) 0 (0%) 4 (5%) 0 (0%) 4 (2%)
FY21: Hearings 126 38 25 174 6 369
FY21: W testimony 20 (16%) 5 (13%) 4 (16%) 33 (19%) 1 (17%) 63 (17%)
Army Navy Marine Corps Air Force Coast Guard Total
W: witness
V: victim
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REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
C. Cases in which an Article 32 PHO found no PC for a PSO
In 15% to 22% of the Article 32 proceedings held for cases completed in FY14 to FY21, preliminary hearing
officers determined that one or more distinct, charged penetrative sexual offenses lacked probable cause.17
In FY20, the Military Services conducted fewer Article 32 preliminary hearings than in any other year from FY14 on.
The no-PC determinations in these data were often accompanied by the following observations from PHOs:
• The offense alleged likely did not occur.
• The determination was made without sworn, live witness testimony, subject to cross-examination, and the
documents provided were insufficient to establish one or more elements of a charged offense.
• Other evidence likely existed and was simply not provided.18
In some no-PC cases, the PHO determined that there was no PC for the charged offense, but PC existed for a lesser
included offense or an alternate charge.
For FY19 to FY21 cases, the staff observed that even when PHOs found PC for an offense, they were more willing
than in previous years to recommend the offense not proceed to trial due to insufficient evidence to obtain and
sustain a conviction.
FIGURE 3. NUMBER OF CASES IN WHICH AN ARTICLE 32 PHO FOUND NO PC FOR A PSO
Held
IO found no PC
250
200
150
100
50
0
FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY
14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21
Army Navy Marine Corps Air Force
17 The staff observed that trial counsel occasionally requested that the PHO assess evidence of uncharged misconduct. In these instances, a PHO could
determine that the uncharged misconduct lacked PC. However, these data do not encompass determinations regarding uncharged misconduct.
18 For example, in a case involving a non-sex offense, such as a violation of a general order charged under Article 92, UCMJ, if the trial counsel failed to
present evidence of the general order or regulation, then the PHO would find the offense lacked PC and acknowledge that the order likely existed but
was not presented.
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8
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
TABLE 3. NUMBER OF CASES IN WHICH AN ARTICLE 32 PHO FOUND NO PC FOR A PSO
Marine Coast
Army Navy Air Force Total
Corps Guard
FY14: held 188 76 68 76 18 426
FY14: IO found
28 (15%) 14 (18%) 28 (41%) 17 (22%) 6 (33%) 93 (22%)
no PC
FY15: held 207 48 51 131 14 451
FY15: IO/PHO
31 (15%) 11 (23%) 13 (25%) 42 (32%) 4 (29%) 101 (22%)
found no PC
FY16: held 151 49 60 160 10 430
FY16: PHO found
28 (19%) 9 (18%) 14 (23%) 35 (22%) 2 (20%) 88 (20%)
no PC
FY17: held 146 46 36 133 7 368
FY17: PHO found
27 (18%) 7 (15%) 7 (19%) 37 (28%) 2 (29%) 80 (22%)
no PC
FY18: held 126 46 27 116 3 318
FY18: PHO found
13 (10%) 10 (22%) 7 (26%) 20 (17%) 2 (67%) 52 (16%)
no PC
FY19: held 91 30 22 125 2 270
FY19: PHO found
11 (12%) 10 (33%) 3 (14%) 16 (13%) 0 40 (15%)
no PC
FY20: held 60 26 17 80 1 184
FY20: PHO found
2 (3%) 2 (8%) 1 (6%) 11 (14%) 0 16 (9%)
no PC
FY21: held 126 38 25 174 6 369
FY21: PHO found
14 (11%) 6 (16%) 2 (8%) 38 (22%) 0 (0%) 60 (16%)
no PC
Total held 1,095 359 306 995 61 2,816
Total PHO found
154 (14%) 69 (19%) 75 (25%) 216 (22%) 16 (26%) 530 (19%)
no PC
Marine Coast
Army Navy Air Force Total
Corps Guard
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9
Courts-Martial
REPORT Pretrial
ON REFORMING Processing
PRETRIAL Data for
PROCEDURES ANDFiscal Years 2014
ESTABLISHING Through
UNIFORM 2021 STANDARDS
PROSECUTION
D. Disposition decisions when the Article 32 PHO found no PC for a PSO
Figure 4 and Table 4 provide the number and proportion of cases in which the Article 32 PHO determined that a
specific PSO lacked PC and a special or general court-martial convening authority referred that distinct no-PC
offense to court-martial or dismissed it.
Although the convening authority’s decision to refer a charge to a court-martial is significant, this initial decision is
not always case-dispositive. Information on the ultimate disposition—or result—of referred charges is presented in
Figure 5 and Table 5.
On average, convening authorities dismissed specifications consistent with the Article 32 PHO no-PC
determination(s) in a majority of the Navy (65%), Marine Corps (68%), and Air Force (72%) cases. In the Army,
convening authorities dismissed specifications consistent with the Article 32 PHO determination(s) in just over
half of the cases in FY14 (54%), but in a minority of cases completed in FY15 to FY21 (30%).
FIGURE 4. NUMBER OF DISPOSITION DECISIONS WHEN THE ARTICLE 32 PHO FOUND NO PC
No-PC referred
No-PC dismissed
50
40
30
20
10
0
FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY FY
14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21 14 15 16 17 18 19 20 21
Army Navy Marine Corps Air Force
E-12
10
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
Courts-Martial Pretrial Processing Data
PROCESSING forFOR
DATA Fiscal Years
FISCAL 2014
YEARS 2014Through
THROUGH2021
2021
TABLE 4. NUMBER OF DISPOSITION DECISIONS WHEN THE ARTICLE 32 PHO FOUND NO PC
Army Navy Marine Corps Air Force Coast Guard Total
FY14 no-PC cases 28 14 28 17 6 93
No-PC, dismissed 15 (54%) 10 (71%) 21 (75%) 10 (59%) 5 (83%) 61 (66%)
No-PC, referred 13 (46%) 4 (29%) 7 (25%) 7 (41%) 1 (17%) 32 (34%)
FY15 no-PC cases 31 11 13 42 4 101
No-PC, dismissed 13 (42%) 7 (64%) 7 (54%) 26 (62%) 2 (50%) 55 (54%)
No-PC, referred 18 (58%) 4 (36%) 6 (46%) 16 (38%) 2 (50%) 46 (46%)
FY16 no-PC cases 28 9 14 35 2 88
No-PC, dismissed 4 (14%) 6 (67%) 13 (93%) 28 (80%) 0 (0%) 51 (58%)
No-PC, referred 24 (86%) 3 (33%) 1 (7%) 7 (20%) 2 (100%) 37 (42%)
FY17 no-PC cases 27 7 7 37 2 80
No-PC, dismissed 11 (41%) 5 (71%) 4 (57%) 28 (76%) 0 (0%) 48 (60%)
No-PC, referred 16 (59%) 2 (29%) 3 (43%) 9 (24%) 2 (100%) 32 (40%)
FY18 no-PC cases 13 10 7 20 2 52
No-PC, dismissed 2 (15%) 9 (90%) 4 (57%) 17 (85%) 2 (100%) 34 (65%)
No-PC, referred 11 (85%) 1 (10%) 3 (43%) 3 (15%) 0 (0%) 18 (35%)
FY19 no-PC cases 11 10 3 16 0 40
No-PC, dismissed 1 (9%) 4 (40%) 1 (33%) 14 (88%) 0 (0%) 20 (50%)
No-PC, referred 10 (91%) 6 (60%) 2 (67%) 2 (12%) 0 (0%) 20 (50%)
FY20 no-PC cases 2 2 1 11 0 16
No-PC, dismissed 1 (50%) 1 (50%) 0 (0%) 6 (55%) 0 (0%) 8 (50%)
No-PC, referred 1 (50%) 1 (50%) 1 (100%) 5 (45%) 0 (0%) 8 (50%)
FY21 no-PC cases 14 6 2 38 0 60
No-PC, dismissed 6 (43%) 3 (50%) 1 (50%) 27 (71%) 0 (0%) 37 (62%)
No-PC, referred 8 (57%) 3 (50%) 1 (50%) 11 (29%) 0 (0%) 23 (38%)
Total no-PC cases 154 69 75 216 16 530
No-PC, dismissed 53 (34%) 45 (65%) 51 (68%) 156 (72%) 9 (56%) 314 (59%)
No-PC, referred 101 (66%) 24 (35%) 24 (32%) 60 (28%) 7 (44%) 216 (41%)
Army Navy Marine Corps Air Force Coast Guard Total
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11
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
E. Results of referred PSO specifications when the PHO found no PC
Figure 5 and Table 5 present the resolution of PSO specifications referred to a general court-martial after an Article
32 PHO determined they lacked PC. Where the data indicate that a no-PC specification was dismissed after
referral, the dismissal could have been pursuant to a pretrial agreement (PTA), the convening authority’s approval of
a discharge or dismissal in lieu of trial, or another action.
Since FY19, only one military accused has been convicted of an adult-victim PSO charge for which an Article 32
PHO found no PC. In a majority of referred cases, the no-PC specification was dismissed after referral, either before
or in lieu of a trial. Thirteen contested trials involving a no-PC specification of an adult-victim PSO resulted in a
not guilty finding as to that charge or specification (another four involved PTAs).
One of the FY19 Army “not guilty” findings was the result of a PTA in which the terms provided that the
government would present no evidence on the charged offense, and consequently the military judge entered a
finding of not guilty. The staff observed this process in several Army cases; in the other Military Services, in contrast,
the no-PC specification was typically dismissed at or before acceptance of pleas, so no findings were made as to
those specifications.
E-14
12
2
guilty
1 1
unknown
unknown
2 2 APPENDIX E. COMPREHENSIVE8 COURTS-MARTIAL PRETRIAL
1 1 guilty 4 4
dismissed
unknown
unknown Courts-Martial Pretrialguilty
Processing Data
PROCESSING DATA Fiscal
forFOR Years
FISCAL 2014
YEARS 2014Through
THROUGH2021
guilty 2021
guilty
17
2 2 not guilty
8 8 4 4 19 19
guilty guilty 4dismissed
dismissed
dismissed guiltyguilty dismissed
mixed
17 17 22 22
8 8 19 19 not guilty not guilty
FIGURE 5. RESULTS OF not guilty
REFERRED NO-PC PSO SPECIFICATIONS not guilty
dismissed
dismissed dismissed
4 4 dismissed
17 17 mixed
mixed 22 22
not guilty
not guilty not guilty
not guilty
4 4 Total FY 14 Total FY 15 Total FY 16
mixedmixed1 1
unknown
unknown 1 1
mixed 2
mixed
2 2 guilty
guilty
guilty
4 4
1 1 guilty
guilty
4 mixedmixed
2
8 8 guilty 19 19 2 guilty
dismissed
dismissed guilty
dismissed
dismissed 4 4 13
21 not
guiltyguilty
guilty
19
17 17 22 22 dismissed
dismissed2 2
not
guilty not
guilty
guilty guilty notnot
4 guilty
4 guilty
4 4 22 13
13 guilty
guilty 15 15
mixed
mixed not guilty 21 21 not
not guilty guilty dismissed
dismissed
dismissed
dismissed 13 13
13 13 15 15 not not guilty
guilty
21 21 not guilty
not guilty dismissed
dismissed 1
dismissed
dismissed 1 1 13 13 mixed
mixed
mixed not guilty
not guilty
1
mixed 1 1
mixedmixed
Total FY 17 Total FY 18 Total FY 19
2 2 3
guilty 1
guilty 1 4 4 guilty
mixedmixed guilty
guilty
4 7
guilty 3 dismissed
3
13 13 15 15 guilty guilty 5
21 21 notnot
guilty
guilty dismissed
dismissed 85
7 7 not not guilty
guilty
dismissed
dismissed
15 13 13 not guilty
3
dismissed guilty
3 dismissed
dismissed notnot
guilty
guilty 15 15
guilty dismissed
dismissed
13 5 5
7 7 not guilty 8not 8guilty
not guilty
dismissed
dismissed not guilty
15 15not guilty
dismissed
dismissed
8 81 1
not guilty
notmixedmixed
guilty
Total 3 3
FY 20 Total FY 21
guilty
guilty 4 4
5 5
dismissed not guilty
7 7 notnot
guilty
guilty 8 8
dismissed
dismissed 5 15 15
dismissed
dismissed not not guilty
guilty
not guilty 4 14 14
15 4 4 4
8 8 dismissed not not dismissed
dismissed notnot dismissed 8guilty
guilty 8 dismissed
guilty
guilty not guilty
not guilty
4 4 4 4 14 14
dismissed
dismissed not guilty
not guilty dismissed
dismissed
1 1
Key for Table 5 (nextpage): mixedmixed
G: guilty
1 1 NG: not guilty
mixedmixed
Mixed: no-PC specifications resulted in
both guilty and not guilty findings
8 8
notnot
guilty
guilty
Dismissed: no-PC specifications were
4 4 4 48 14 14 dismissed after referral
dismissed
dismissed notnot
guilty
guilty dismissed
dismissed
14 E-15
13
dismissed
Courts-Martial
REPORT Pretrial
ON REFORMING Processing
PRETRIAL Data for
PROCEDURES ANDFiscal Years 2014
ESTABLISHING Through
UNIFORM 2021 STANDARDS
PROSECUTION
TABLE 5. RESULTS OF REFERRED NO-PC PSO SPECIFICATIONS
Army Navy Marine Corps Air Force Coast Guard Total
FY14 13 4 7 7 1 32
no-PC 2: G 1: NG 5: NG 4: NG 1: NG 2: G
referred 6: NG 2: mixed 2: dismissed 1: unknown 17: NG
2: mixed 1: dismissed 2: dismissed 4: mixed
3: dismissed 1: unknown
8: dismissed
FY15 18 4 6 16 2 46
no-PC 3: G 1: G 3: NG 8: NG 1: NG 4: G
referred 7: NG 3: NG 3: dismissed 8: dismissed 1: dismissed 22: NG
1: mixed 1: mixed
7: dismissed 19: dismissed
FY16 24 3 1 7 2 37
no-PC 2: G 3: dismissed 1: dismissed 3: NG 2: dismissed 2: G
referred 10:NG 4: dismissed 13: NG
1: mixed 1: mixed
11: dismissed 21: dismissed
FY17 16 2 3 9 2 32
no-PC 2: G 1: NG 1: NG 2: G 2: dismissed 4: G
referred 7: NG 1: dismissed 2: dismissed 4: NG 13: NG
7: dismissed 3: dismissed 15: dismissed
FY18 11 1 3 3 0 18
no-PC 2: G 1: dismissed 1: G 2: NG 3: G
referred 5: NG 1: NG 1: dismissed 8: NG
4: dismissed 1: dismissed 7: dismissed
FY19 10 6 2 2 0 20
no-PC 3: NG (1 PTA) 6: dismissed 2: dismissed 2: NG 5: NG (1 PTA)
referred 7: dismissed 15: dismissed
FY20 1 1 1 5 0 8
no-PC 1: dismissed 1: dismissed 1: NG 3: NG 4: NG
referred 2: dismissed 4: dismissed
FY21 8 3 1 11 0 23
no-PC 5: NG (3 PTA) 1: NG 1: dismissed 2: NG 8: NG (3 PTA)
referred 3: dismissed 2: dismissed 1: mixed 1: mixed
8: dismissed 14: dismissed
Total 101 24 24 60 7 216
no-PC 11: G 1: G 1: G 2: G 2: NG 15: G
referred 43: NG 6: NG 11: NG 28: NG 5: dismissed 90: NG
4: mixed 2: mixed 12: dismissed 1: mixed 7: mixed
43: dismissed 15: dismissed 1: unknown 1: unknown
28: dismissed 103: dismissed
Army Navy MarineE-16
18
Corps Air Force Coast Guard Total
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
IV. DATA CONCERNING ALL UCMJ OFFENSES FOR WHICH AN ARTICLE 32 PRELIMINARY
HEARING OFFICER FOUND NO PROBABLE CAUSE: FY21
A. Military Service response to RFI for all preferred cases completed in FY21
This section presents data for preferred cases involving any offense charged under the UCMJ that was tried to
verdict or reached an alternate disposition in FY21.
An Article 32 preliminary hearing is a prerequisite for referral to a general court-martial; however, cases resolved in
another forum do not require an Article 32 hearing. Based on this, the staff first screened out cases referred directly
to a summary or special court-martial and cases resolved by alternate means. The remaining cohort—FY21 cases in
which an Article 32 hearing was either held or waived—comprises the universe of cases reviewed by the staff to
analyze no-PC determinations and case dispositions.
Figure 6 and Table 6 present the cases reported by each of the Military Services as complete in FY21, cases the staff
received with a complete set of case documents, and the total number of cases received in which an Article 32
hearing was either held or waived.19
The staff received a total of 1,797 cases for review. An Article 32 preliminary hearing was either held or waived in
1,078 of the cases reviewed.
19 The DAC-IPAD has received 75% of the Army’s total reported cases and 68% of the Marine Corps’ total reported
cases. The Army’s self-reported data show that the majority of the Army’s cases that were reported but not received (242) were cases intended for special
court-martial for which a discharge in lieu of court-martial request was accepted. The Marine Corps’ self-reported data show there were 105 cases in
which an Article 32 hearing was held or waived, of which the staff received the majority (96 cases, or 91%). The absence of these Army and Marine
Corps cases does not impact the analysis for any of the Section IV tables..
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15
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
FIGURE 6. MILITARY SERVICE RESPONSE TO DLSA RFI FOR CASES COMPLETED IN FY21
Cases reported
Cases received
1000
800
600
400
200
0
Army Navy Marine Air Force
FY21 FY21 Corps FY21
FY21
TABLE 6. MILITARY SERVICE RESPONSE TO DLSA RFI FOR CASES COMPLETED IN FY21
Army Navy Marine Corps Air Force Coast Guard Total
Cases reported 977 300 224 572 51 2,124
Cases received 735 (75%) 299 (100%) 152 (68%) 560 (98%) 51 (100%) 1,797 (85%)
Cases received w/
509 146 96 309 18 1,078
Art 32 hearing or waiver
E-18
16
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
B. Review process for FY21 cases in which an Article 32 hearing was held or waived
The professional staff reviewed relevant source documents for all cases completed in FY21 in which an Article 32
preliminary hearing was either held or waived.20
If the case-processing documents indicated that the PHO determined PC was not established for any UCMJ
offense, the staff then recorded the ultimate disposition of the no-PC specification(s). If the no-PC offense was
charged in the alternative and the PHO determined that PC was established under a different legal theory, the staff
did not treat that case as involving a no-PC determination.
The following tables and figures provide the dispositions for these no-PC offenses. They also offer a comparison
between case-processing statistics for FY21 cases overall and the statistics for cases involving adult-victim PSO
charges.
The remainder of Section IV provides the Military Services’ FY21 data in the following areas:
C. Article 32 hearings and waivers
D. Witness testimony in Article 32 proceedings
E. The grade of judge advocates serving as Article 32 PHOs
F. Cases in which the PHO found no PC
G. Disposition decisions for cases in which the PHO found no PC
H. Results of referred no-PC specifications
20 The staff reviewed the following documents, as applicable, for each case: the charge sheet, Article 32 report, Article 34 pretrial advice or other legal
memorandum for cases not referred to trial, alternate disposition documents, and trial result documents.
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17
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
C. The frequency of Article 32 hearings and waivers in FY21 cases
Figure 7 and Table 7 provide the frequency of Article 32 preliminary hearings and waivers in cases completed in FY21.
The percentage of Article 32 hearings waived in FY21 PSO cases (23%) is similar to the percentage of hearings waived
in prior years, and somewhat lower than the percentage of Article 32 hearings waived in FY21 cases overall (31%).
Though the Navy and Air Force are comparable in population size, the Air Force had more than twice as many cases in
which an Article 32 hearing was held or waived (309) as the Navy (146). It is notable that the Air Force held Article 32
preliminary hearings in 91% of its PSO cases, a much higher percentage than any other Service.
FIGURE 7. FREQUENCY OF FY21 ARTICLE 32 PRELIMINARY HEARINGS AND WAIVERS
600
Art 32s held (all offenses)
306
(60%) Art 32s waived (all offenses)
500 Art 32s held (PSO)
Art 32s waived (PSO)
400
270
(87%)
300
126 174
(67%) (91%)
200 203 88
(40%) (60%)
63
(66%)
100 38
(64%) 25
(76%)
61 58
(33 %) 21 33 8 39 17
(40 %) (34 %) (13 %) (9 %)
(36 %) (24 %)
0
All FY21 FY21 All FY21 FY21 All FY21 FY21 All FY21 FY21
offenses PSOs offenses PSOs offenses PSOs offenses PSOs
Army Navy Marine Corps Air Force
(AD population (AD population (AD population (AD population
481,254) 341,996) 180,958) 329,614)
TABLE 7. FREQUENCY OF FY21 ARTICLE 32 PRELIMINARY HEARINGS AND WAIVERS
Army Navy Marine Corps Air Force Coast Guard Total
AD population21 481,254 341,996 180,958 329,614 40,558 1,374,380
Art 32s waived or held
509 146 96 309 18 1,078
(all offenses)
Art 32s waived (all) 203 (40%) 58 (40%) 33 (34%) 39 (13%) 5 (28%) 338 (31%)
Art 32s held (all) 306 (60%) 88 (60%) 63 (66%) 270 (87%) 13 (72%) 740 (69%)
Art 32s waived or held
187 (37%) 59 (40%) 33 (34%) 191 (62%) 7 (39%) 477 (44%)
(PSO)
Art 32s waived (PSO) 61 (33%) 21 (36%) 8 (24%) 17 (9%) 1 (14%) 108 (23%)
Art 32s held (PSO) 126 (67%) 38 (64%) 25 (76%) 174 (91%) 6 (86%) 369 (77%)
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APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
D. Witness testimony in Article 32 hearings in FY21 cases
Figure 8a and Table 8a present information about the frequency with which witnesses testified in all Article
32 preliminary hearings in FY21 cases. Figure 8b and Table 8b present this information for PSO cases.
In FY21, only 18% of all Article 32 preliminary hearings involved witness testimony.
FIGURE 8A. FY21: FREQUENCY OF FIGURE 8B. FY21: FREQUENCY OF
WITNESS TESTIMONY IN ARTICLE 32 WITNESS TESTIMONY IN ARTICLE 32
PRELIMINARY HEARINGS (ALL OFFENSES) PRELIMINARY HEARINGS (PSO CASES)
Art 32 hearings (all) Art 32 hearings (PSO)
Witness testified (all) Witness testified (PSO)
350 200
300
150
250
200
100
150
100
50
50
0 0
Army Navy Marine Air Force Army Navy Marine Air Force
FY21 FY21 Corps FY21 FY21 FY21 Corps FY21
FY21 FY21
TABLE 8A. FY21: FREQUENCY OF WITNESS TESTIMONY IN ARTICLE 32 PRELIMINARY HEARINGS (ALL OFFENSES)
Army Navy Marine Corps Air Force Coast Guard Total
Art 32 hearings
306 88 63 270 13 740
(all)
Witness testified
52 (17%) 16 (18%) 12 (19%) 50 (19%) 3 (23%) 133 (18%)
(all)
TABLE 8B. FY21: FREQUENCY OF WITNESS TESTIMONY IN ARTICLE 32 PRELIMINARY HEARINGS (PSO CASES)
Army Navy Marine Corps Air Force Coast Guard Total
Art 32 hearings
126 38 25 174 6 369
(PSO)
Witness testified
20 (16%) 5 (13%) 4E-21
(16%) 33 (19%) 1 (17%) 63 (17%)
(PSO)
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
E. The grade of judge advocates serving as Article 32 PHOs
Figures 9a and 9b and Tables 9a and 9b provide a breakdown of the grade of judge advocates serving as Article 32
PHOs for all cases and for cases involving PSOs, respectively.
The Air Force often details military judges to serve as PHOs, particularly in sexual offense cases. In FY21, of the Air
Force’s 270 Article 32 hearings, 174 hearings involved at least one PSO. Of the 40 (15%) total Air Force Article 32
hearings with military judge serving as the PHO, 34 (85%) of those 40 hearings were cases with at least one PSO.
Overall, 20% (34 of 174) of all Air Force Article 32 hearings with at least one PSO have a military judge serving as
the PHO.
To address the difficulty of finding Article 32 PHOs with sufficient training and experience, the Navy established
an Article 32 preliminary hearing unit comprised of senior reserve judge advocates.22 In FY21, more than half (54
of 88) of the Navy’s Article 32 hearings were presided over by judge advocates in the grades of O-5 or O-6, most of
whom were assigned to the Article 32 preliminary hearing unit.23
FIGURE 9A. FY21: GRADE OF PHOS FOR ARTICLE 32 PRELIMINARY HEARINGS (ALL OFFENSES)
175
140
105
70
35
0
O-2 O-3 O-4 O-5 O-6 O-2 O-3 O-4 O-5 O-6 O-2 O-3 O-4 O-5 O-6 O-2 O-3 O-4 O-5 O-6
Army Navy Marine Corps Air Force
22 See Navy response to DAC-IPAD Request for Information Set 11 (May 15, 2019), available at: https://dacipad.whs.mil/images/Public/07-RFIs/
DACIPAD_RFI_Set11_20190515_Questions_Answers_20191204.pdf.
23 From the documents reviewed for this study, the DLSA staff was not able to determine whether military judges served as PHOs in any Army,
Marine Corps, or Coast Guard cases.
E-22
20
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
FIGURE 9B. FY21: GRADE OF PHOS FOR ARTICLE 32 PRELIMINARY HEARINGS (PSO CASES)
125
100
75
50
25
0
O-2 O-3 O-4 O-5 O-6 O-2 O-3 O-4 O-5 O-6 O-2 O-3 O-4 O-5 O-6 O-2 O-3 O-4 O-5 O-6
Army Navy Marine Corps Air Force
TABLE 9A. FY21: GRADE OF PHOS FOR ARTICLE 32 PRELIMINARY HEARINGS (ALL OFFENSES)
Army Navy Marine Corps Air Force Coast Guard Total
306 88 63 270 13 740
O-2 2 0 0 0 0 2
O-3 146 8 5 2 0 161
O-4 137 19 37 169 (1 MJ) 4 366
O-5 16 14 17 81 (29 MJ) 8 136
O-6 1 40 2 18 (10 MJ) 1 62
Unknown 4 7 2 0 0 13
MJ: military judge
TABLE 9B. FY21: GRADE OF PHOS FOR ARTICLE 32 PRELIMINARY HEARINGS (PSO CASES)
Army Navy Marine Corps Air Force Coast Guard Total
126 38 25 174 6 369
O-2 0 0 0 0 0 0
O-3 49 4 2 0 0 55
O-4 67 11 17 106 (1 MJ) 3 204
O-5 8 3 5 56 (24 MJ) 3 75
O-6 0 17 1 12 (9 MJ) 0 30
Unknown 2 3 0 0 0 5
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21
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
F. Cases in which an Article 32 PHO found no PC for any UCMJ offense
Much like the Article 32 hearings held in prior years, the no-PC determinations in FY21 data were often
accompanied by the following observations from PHOs:
• The offense alleged likely did not occur.
• The determination was made without the benefit of sworn, live witness testimony, subject to cross-
examination, and the documents provided were insufficient to establish one or more elements of a charged
offense.
• Other evidence likely existed and was simply not provided.24
• In a small number of these no-PC cases, the PHO determined that there was no PC for the charged offense,
but PC existed for a lesser included offense or an alternate charge.25
Figure 10a-1 and Table 10a-1 provide the percentage of all Article 32 preliminary hearings in which a PHO found
no PC for any UCMJ offense.
Figure 10a-2 and Table 10a-2 provide the percentage of all Article 32 preliminary hearings in which a PHO found
no PC for a PSO.
Figure 10a-3 and Table 10a-3 provide the percentage of all Article 32 preliminary hearings in which a PHO found
no PC for all offenses other than PSOs. There is some overlap between the no-PC numbers in Tables 10a-2 and
10a-3, as there were some cases in which the PHO found no PC for a PSO as well as other offenses.
In FY21, Article 32 PHOs found no PC at a much lower rate for PSOs (8%) than for all other offenses (21%).
Figure 10b and Table 10b provide the percentage of Article 32 preliminary hearings involving a charged PSO in
which the PHO found no PC for one or more specifications of a PSO. The percentage of cases in which a PHO
found no PC in these cases (16%) is lower than the overall percentage of no-PC cases for all offenses (26%).
24 For example, in an FY21 case involving a non-sex offense, such as a violation of a general order or regulation charged under Article 92, UCMJ, if the
trial counsel failed to present as evidence the general order or regulation that the accused allegedly violated, then the PHO would find no PC and
acknowledge that the order likely existed but was not presented.
25 For example, a PHO may find that there is not PC for aggravated assault under Article 128, UCMJ, but there is probable cause for assault
consummated by a battery under the same article. Or a PHO may find that there is no PC for a sexual contact offense under Article 120, UCMJ, but
there is PC for an assault consummated by a battery under Article 128, UCMJ.
E-24
22
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
FIGURE 10A-1, 10A-2, 10A-3. FY21: NUMBER OF CASES IN WHICH AN ARTICLE 32 PHO FOUND NO PC,
BY OFFENSE CATEGORY
Army (306 total) Navy (88 total)
PHO found PHO found
PHO found PHO found PHO found PHO found
no PC no PC
no PC (PSO) no PC (other) no PC (PSO) no PC (other)
(PSO and (PSO and
14 82 6 13
other) other)
Marine Corps (63 total) Air Force (270 total)
PHO found PHO found
PHO found PHO found PHO found
no PC no PC
no PC (other) no PC (PSO) no PC (other)
(PSO and 38
(PSO and
47
16 other)
other)
2
Total (740 total)
PHO found
PHO found PHO found
no PC
no PC (PSO) no PC (other)
(PSO and
60 158
other)
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23
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
TABLE 10A-1. FY21: NUMBER OF CASES IN WHICH AN ARTICLE 32 PHO FOUND NO PC (ALL OFFENSES)
Army Navy Marine Corps Air Force Coast Guard Total
Art 32 hearings (all) 306 88 63 270 13 740
PHO found no PC
90 (29%) 16 (18%) 16 (25%) 71 (26%) 0 (0%) 193 (26%)
(all)
TABLE 10A-2. FY21: NUMBER OF CASES IN WHICH AN ARTICLE 32 PHO FOUND NO PC
FOR A PSO (PERCENTAGE OF ALL HEARINGS)
Army Navy Marine Corps Air Force Coast Guard Total
Art 32 hearings (all) 306 88 63 270 13 740
PHO found no PC
14 (5%) 6 (7%) 2 (3%) 38 (14%) 0 (0%) 60 (8%)
(PSO)
TABLE 10A-3. FY21: NUMBER OF CASES IN WHICH AN ARTICLE 32 PHO FOUND NO PC
FOR AN OFFENSE OTHER THAN A PSO (PERCENTAGE OF ALL HEARINGS)
Army Navy Marine Corps Air Force Coast Guard Total
Art 32 hearings (all) 306 88 63 270 13 740
PHO found no PC
82 (27%) 13 (15%) 16 (25%) 47 (17%) 0 (0%) 158 (21%)
(other)
E-26
24
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING
Courts-Martial Pretrial Processing DataDATA
forFOR FISCAL
Fiscal YEARS
Years 2014Through
2014 THROUGH2021
2021
FIGURE 10B. FY21: NUMBER OF CASES IN WHICH AN ARTICLE 32 PHO FOUND NO PC FOR A PSO
(PERCENTAGE OF ALL HEARINGS INVOLVING A CHARGED PSO)
Army Navy Marine Corps
FY21: Art 32 hearings (PSO) FY21: Art 32 hearings (PSO) FY21: Art 32 hearings (PSO)
126 38 25
PHO found PHO found PHO found
no PC (PSO) no PC (PSO) no PC (PSO)
2
14 (8%)
(11%) 6
(16%)
Air Force Total
FY21: Art 32 hearings (PSO) FY21: Art 32 hearings (PSO)
174 369
PHO found
PHO found
no PC (PSO)
no PC (PSO)
60
38 (16%)
(22%)
TABLE 10B. FY21: NUMBER OF CASES IN WHICH AN ARTICLE 32 PHO FOUND NO PC FOR A PSO
(PERCENTAGE OF ALL HEARINGS INVOLVING A CHARGED PSO)
Army Navy Marine Corps Air Force Coast Guard Total
Art 32 hearings (PSO) 126 38 25 174 6 369
PHO found no PC
14 (11%) 6 (16%) 2 (8%) 38 (22%) 0 (0%) 60 (16%)
(PSO)
E-27
25
Courts-Martial
REPORT Pretrial
ON REFORMING Processing
PRETRIAL Data for
PROCEDURES ANDFiscal Years 2014
ESTABLISHING Through
UNIFORM 2021 STANDARDS
PROSECUTION
G. Disposition decisions for cases in which the Article 32 PHO found no PC for an offense
Figure 11a and Table 11a provide the number and proportion of cases in which the Article 32 PHO determined
that an offense lacked PC and a special or general court-martial convening authority referred that distinct no-PC
offense to court-martial or dismissed it.
Figure 11b and Table 11b provide the same information for cases involving PSOs.
Convening authorities dismissed specifications for which the Article 32 PHO found no PC at a lower rate (45%) in
cases involving all UCMJ offenses than in cases involving PSO no-PC specifications (62%).
FIGURE 11A. FY21: DISPOSITION DECISIONS WHEN FIGURE 11B. FY21: DISPOSITION DECISIONS
THE PHO FOUND NO PC (ALL OFFENSES) WHEN THE PHO FOUND NO PC (PSO CASES)
No-PC dismissed (all) No-PC dismissed (PSO)
No-PC referred (all) No-PC referred (PSO)
100 40
35
80
30
60 25
20
40
15
10
20
5
0 0
Army Navy Marine Air Force Army Navy Marine Air Force
FY21 FY21 Corps FY21 FY21 FY21 Corps FY21
FY21 FY21
TABLE 11A. FY21: DISPOSITION DECISIONS WHEN THE ARTICLE 32 PHO FOUND NO PC (ALL OFFENSES)
Army Navy Marine Corps Air Force Coast Guard Total
No-PC cases 90 16 16 71 0 193
No-PC dismissed 34 (38%) 7 (44%) 7 (44%) 39 (55%) 0 87 (45%)
(all)
No-PC referred26 56 (62%) 9 (56%) 9 (56%) 32 (45%) 0 106 (55%)
(all)
TABLE 11B. FY21: DISPOSITION DECISIONS WHEN THE ARTICLE 32 PHO FOUND NO PC (PSO CASES)
Army Navy Marine Corps Air Force Coast Guard Total
No-PC cases 14 6 2 38 0 60
No-PC dismissed 6 (43%) 3 (50%) 1 (50%) 27 (71%) 0 37 (62%)
(PSO)
No-PC referred 8 (57%) 3 (50%) 1 (50%) 11 (29%) 0 23 (38%)
(PSO)
26 For cases involving more than one specification that the PHO determined lacked PC, the staff categorized the case as “referred” if
E-28
any of the specifications lacking PC were referred to court-martial, even if the other specifications lacking PC were not referred.
APPENDIX E. COMPREHENSIVE COURTS-MARTIAL PRETRIAL
PROCESSING DATA FOR FISCAL YEARS 2014 THROUGH 2021
Courts-Martial Pretrial Processing Data for Fiscal Years 2014 Through 2021
H. Results of referred specifications when the PHO found no PC
Figure 12a and Table 12a present the resolution of specifications that were referred to court-martial after an Article
32 PHO determined that the specifications lacked PC. If a no-PC specification was dismissed after referral, the
dismissal could have been pursuant to a PTA, the convening authority’s approval of a discharge or dismissal in lieu
of trial, or other action. Figure 12b and Table 12b provide the same information for PSO cases.
Notably, in FY21 there was only one case in which an accused was found guilty of a PSO specification for which the
Article 32 PHO had previously determined there was no PC (the Air Force “mixed” case noted in Table 12b).
Contrast this number with the 35 cases (31 “guilty” cases and 4 “mixed” cases in Table 12a) in which the accused
was found guilty of one or more specifications of a UCMJ offense for which the Article 32 PHO had previously
determined there was no PC. In 18 of the 35 cases, the accused pled guilty to the no-PC offense pursuant to a PTA.
Of the 193 referred cases involving all UCMJ offenses in which an Article 32 PHO determined one or more
specifications lacked PC (see Table 11a), 27 (14%) resulted in a not guilty finding for the no-PC specifications.
Seven of those not guilty findings were as a result of a PTA.
Of the 60 cases in which an Article 32 PHO determined one or more PSO specifications lacked PC (see Table 11b),
8 (13%) cases resulted in not guilty findings for the no-PC specifications, though three of the not guilty findings
were as a result of a PTA.
E-29
27
10 9
10 9 dismissed2 guilty
guiltydismissed PTA
dismissed
3
PTA PTA 9
Courts-Martial
REPORT Pretrial
ON REFORMING Processing
PRETRIAL Data for
PROCEDURES Fiscal
AND Years 2014
ESTABLISHING Through
UNIFORM
9
2021
PROSECUTION
11 STANDARDS guilty
guilty PTA
dismissed PTA
11 guilty PTA 1
dismissed dismissed 10
10 7 not3 guilty
7 not guilty not guiltynot guilty
FIGURE 12A. FY21: RESULTS OF REFERRED
not guilty NO-PC SPECIFICATIONS1(ALL OFFENSES)
PTA
1 PTA mixed
mixed
Army Navy Marine Corps
10 10 9 9 2 2 4
guilty guilty 24
dismissed
dismissed dismissed
dismissed dismissed guilty
3 3
PTA PTA PTA PTA 2 PTA guilty
guilty guilty
guilty PTA
9 9 4 5
10 9 2 PTA PTA PTA dismissed
11 11 guilty PTA
guilty PTA 14 1 guilty
missed guilty dismissed
dismisseddismissed dismissed
3 PTA9 PTA
PTA PTA dismissed
dismissed
PTA
guilty dismissed
9 10 10 PTA 3 3 3
guilty PTA not3 guilty dismissed
7
sed 7 7not guilty
not guilty 1 not guilty
not guilty
not guilty dismissed dismissed not guilty
1 1 PTA PTA 3
10mixed
mixed 3 mixed
7 not guilty not guilty
not guilty
PTA
4 4
Air Force dismissed 4
dismissed 4 Total
2 2
guilty guilty
PTA PTAguilty guilty
PTA PTA 5 5 20 13
4 4 4 guilty guilty guilty
dismissed 4 20 13 dismissed
2dismissed
dismissed guilty 9 9 PTA PTA guilty PTA
guilty PTA PTA
PTA dismissed
dismissed dismissed
PTA 5 PTA 18 g
4 3 3 guilty 7 7 guilty
ssed 24
dismissed 9
dismissed PTA not guilty
not guilty PTA
TA dismissed 24 dismissed
3 3 dismissed 20
3 7 mixed mixed not gu
20
dismissed not guilty not guilty
3
mixed 4
4 mixed 7
mixed 7 not guilty
not guilty PTA
PTA
20 20 13 13
dismissed
dismissedguilty guilty
TABLE 12A.PTA FY21:PTA RESULTS18 18
OF REFERRED NO-PC SPECIFICATIONS (ALL OFFENSES)
13 guilty guilty
20 PTA PTA
dismissed guilty 24 24 Navy
PTA
Army dismissed
dismissed
Marine Corps Air Force Coast Guard Total
18
FY21 56 guilty 9 20 20 9 32 0 106
no-PC24 17: G (8 PTA) PTA 3: G (3 PTA) not guilty
not guilty
2: G (2 PTA) 9: G (5 PTA) 31: G (18 PTA)
referred
dismissed17: NG (7 PTA) 3: NG 7: NG 27: NG (7 PTA)
(all) 1: mixed7 204 3: mixed 4: mixed
not guilty 4
mixed mixed7 7
21: dismissed 3:
notdismissed
not guilty 7: dismissed
guilty 13: dismissed 44: dismissed
4 (10 PTA) (2 PTA)
PTA PTA (4 PTA) (4 PTA) (20 PTA)
mixed 7
not guilty
PTA
E-30
28
1 1
dismissed dismissed
PTA 2 PTA
1 2 1
not guilty E. COMPREHENSIVE
APPENDIX dismissed not not
COURTS-MARTIAL guilty
PRETRIAL
guilty
PTA
Courts-Martial Pretrial
2 Processing
PROCESSING Data for
DATA Fiscal
FOR Years
FISCAL YEARS2014
2014 Through
THROUGH 2021
2021
2
dismissed dismissed
3 31
not guilty not guilty
PTA dismissed
PTA
FIGURE 12B. FY21: RESULTS OF REFERRED NO-PC SPECIFICATIONS (PSO CASES)
Army Navy Marine Corps
1 1
dismissed
dismissed 2
PTA PTA 3 not guilty
2 2 1 1 1 1 dismissed
1 not not
guiltyguilty dismissed not not
dismissed guiltyguilty PTA 1
missed PTA PTA1 1 mixed
PTA 2 2 dismissed
2 dismissed 1 1 dismissed
dismissed
not guilty dismissed not guilty
5
3 3 PTA
1 1 dismissed
not not
guiltyguilty
sed PTA PTA dismissed
dismissed
3
not guilty 1
PTA dismissed
Air Force 2 2 Total
3 3 not not
guiltyguilty
dismissed
dismissed
PTA PTA 1 51
1 1 2 5 5
3 mixedmixed
dismissed 5
dismissed
dismissed not guilty not guilty dismissed
dismissed PTA PTA not gu
PTA 1 5 5
1
mixeddismissed
dismissed 3
dismissed
not guilty
9 PTA
5 9
dismissed dismissed dismissed
1
mixed
TABLE 12B. FY21:
5 5 RESULTS OF REFERRED NO-PC SPECIFICATIONS (PSO CASES)
dismissed
dismissed 5 5
not guilty
not guilty
Army PTA PTA
Navy Marine Corps Air Force Coast Guard Total
5
FY21 dismissed 8 5 3 3 31 11 0 23
no-PC PTA not guilty not guilty
not guilty
5: NG (3 PTA) 1: NG 2: NG 8: NG (3 PTA)
referred 9 9 PTA PTA
1: mixed 1: mixed
(PSO) dismissed
3 dismissed
3: dismissed not guilty
2: dismissed 1: dismissed 8: dismissed 14: dismissed
PTA 1 1
9 (1 PTA) (1 PTA) mixed
mixed (3 PTA) (5 PTA)
dismissed
1
mixed
E-31
29
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
Acronyms and Abbreviations
AD active duty
DLSA Defense Legal Services Agency
DoD Department of Defense
DoD GC General Counsel of the Department of Defense
FY fiscal year
IO Article 32 investigating officer
PC probable cause
PHO preliminary hearing officer
PSO penetrative sexual offense
PTA pretrial agreement
RFI Request for Information
UCMJ Uniform Code of Military Justice
E-32
A-1
APPENDIX F. DAC-IPAD PROPOSED AMENDMENT FOR ARTICLE 32, UCMJ
APPENDIX F. DAC-IPAD PROPOSED AMENDMENT FOR
ARTICLE 32, UCMJ
APPENDIX F for Draft DAC-IPAD Report
Proposed Amendment for Article 32, UCMJ
Section 832 of title 10, United States Code (article 32 of the Uniform Code of
Military Justice), is amended by inserting the following subsection (i):
(i) Effect of no-probable-cause determination by preliminary hearing officer.-
(1) If the preliminary hearing officer determines pursuant to subsection (a)(2)(B)
that there is not probable cause to believe that the accused committed the offense
charged, the affected charges and specifications cannot be referred to a general
court-martial, subject to the following:
(A) A preliminary hearing officer’s no-probable-cause determination under
subsection (a)(2)(B) is without prejudice to the government to dismiss the affected
charges and specifications and prefer new charges.
(B) Under regulations prescribed by the President, a preliminary hearing officer
shall reconsider a no-probable-cause determination upon the government’s
presentation of newly discovered evidence, or evidence that, in the exercise of due
diligence, could not have been obtained before the original hearing.
F-1
APPENDIX G. DAC-IPAD PROPOSAL FOR APPENDIX 2.1, MCM
APPENDIX G. DAC-IPAD PROPOSAL FOR APPENDIX 2.1, MCM
APPENDIX G for Draft DAC-IPAD Report
APPENDIX 2.1
NON-BINDING DISPOSITION GUIDANCE
This Appendix provides non-binding disposition guidance issued by the Secretary of Defense, in
consultation with the Secretary of Homeland Security, pursuant to Article 33 (Disposition
Guidance) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 833.
SECTION 1: IN GENERAL
1.1. Policy
1.2. Purpose
1.3. Scope
1.4. Non-Litigability
SECTION 2: CONSIDERATIONS IN ALL CASES
2.1. Interests of Justice and Good Order and Discipline
2.2. Initial Disposition and Consultation with a Judge Advocate
2.3. Referral
2.4 Determining the Charges and Specifications to Refer.
2.4. Determining the Appropriate Type of Court-Martial.
2.5. Alternatives to Referral
2.6. Inappropriate Considerations
SECTION 3: SPECIAL CONSIDERATIONS
4.1. Prosecution in Another Jurisdiction
4.2. Plea Agreements
4.3. Agreements Concerning Disposition of Charges and Specifications
4.4. Agreement Concerning Sentence Limitations
SECTION 1: IN GENERAL
1.1. Policy.
a. This Appendix provides non-binding guidance regarding factors that convening
authorities, commanders, staff judge advocates, special trial counsel, and judge advocates should
G-1
G-1
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
APPENDIX G for Draft DAC-IPAD Report
consider when exercising their duties with respect to the disposition of charges and specifications
under the UCMJ, and to further promote the purpose of military law. 1
b. This Appendix supplements the Manual for Courts-Martial. The guidance in this
Appendix does not require a particular disposition decision or other action in any given case.
Accordingly, the disposition factors set forth in this Appendix are cast in general terms, with a
view to providing guidance rather than mandating results. The intent is to promote regularity
without regimentation; encourage consistency without sacrificing necessary flexibility; and
provide the flexibility to apply these factors in the manner that facilitates the fair and effective
response to local conditions in the interest of justice and good order and discipline.
c. The disposition guidance contained in this Appendix aligns with the purposes of Articles
33 and 36, UCMJ, in that it includes principles of law generally recognized in official guidance
of the Attorney General with respect to disposition of federal criminal cases, and in the trial of
criminal cases in the United States district courts. Because Article 36 also requires all rules and
regulations to be uniform insofar as practicable, this Appendix guides all military justice
practitioners who exercise prosecutorial authority or advise commanders who make disposition
decisions.
1.2. Purpose. This non-binding disposition guidance is intended to:
a. Set forth factors for consideration by those assigned responsibility under the UCMJ for
disposing of alleged violations of the UCMJ on how best to exercise their authority in a reasoned
and structured manner, consistent with the principle of fair and evenhanded administration of the
law;
b. Ensure the fair and effective exercise of prosecutorial discretion and responsibility by
convening authorities, commanders, staff judge advocates, special trial counsel, and judge
advocates and promote confidence on the part of the public and individual accused
servicemembers that disposition decisions will be made rationally and objectively on the merits
of each case;
c. Serve as a training tool for convening authorities, commanders, staff judge advocates,
special trial counsel, and judge advocates in the proper discharge of their duties;
d. Contribute to the effective utilization of the Government’s law enforcement and
prosecutorial resources; and
e. Enhance the relationship between military commanders, judge advocates, special trial
counsel, and law enforcement agencies, including military criminal investigative organizations
(MCIOs), with respect to investigations and charging decisions.
1 “The purpose of military law is to promote justice, to assist in maintaining good order and discipline on the armed forces, to
promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United
States.
G-2
G-2
APPENDIX G. DAC-IPAD PROPOSAL FOR APPENDIX 2.1, MCM
APPENDIX G for Draft DAC-IPAD Report
1.3. Scope. This Appendix is designed to promote the reasoned exercise of discretion with
respect to the following disposition decisions:
a. Initiating and declining action (to include deferral) under the UCMJ;
b. Disposition of covered offenses by special trial counsel;
c. Selecting appropriate charges and specifications;
d. Selecting the appropriate type of court-martial or alternative mode of disposition, if any;
and
e. Considering the appropriateness of a plea agreement.
1.4. Non-Litigability. This Appendix non-binding guidance was developed solely as a matter
of internal Departmental policy in accordance with Article 33. This Appendix is not intended to,
does not, and may not be relied upon to create a substantive or procedural right, benefit, or
defense substantive or procedural, enforceable at law or in equity by any person and may not be
relied upon by a party to litigation under the UCMJ.
SECTION 2: CONSIDERATIONS IN ALL CASES
2.1. Interests of Justice and Good Order and Discipline. The military justice system is a
powerful tool that promotes justice and assists in maintaining good order and discipline while
protecting the civil rights of Service members. It is a commander’s duty to use it appropriately.
In determining whether the interests of justice and good order and discipline are served by trial
by court-martial or some other disposition in a case, the special trial counsel, or commander or
convening authority in consultation with a judge advocate, as appropriate, should consider the
following:
a. The mission-related responsibilities of the command;
b. Whether the offense occurred during wartime, combat, or contingency operations;
c. The effect of the offense on the morale, health, safety, welfare, and good order and
discipline of the command;
d. The nature, seriousness, and circumstances of the offense and the accused’s culpability in
connection with the offense;
e. In cases involving an individual who is a victim under Article 6b, the views of the victim
as to disposition;
f. The extent of the harm caused to any victim of the offense;
g. The availability and willingness of the victim and other witnesses to testify;
h. Whether admissible evidence will probably likely be sufficient to obtain and sustain a
conviction in a trial by court-martial;
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i. Input, if any, from law enforcement agencies involved in or having an interest in the
specific case;
j. The truth-seeking function of trial by court-martial;
k. The accused’s willingness to cooperate in the investigation or prosecution of others;
l. The accused’s criminal history or history of misconduct, whether military or civilian, if
any;
m. The probable sentence or other consequences to the accused of a conviction; and
n. The impact and appropriateness of alternative disposition options—including nonjudicial
punishment or administrative action—with respect to the accused’s potential for continued
service and the responsibilities of the command with respect to justice and good order and
discipline.
2.2. Initial Disposition and Consultation with a Judge Advocate. If a member of a command is
accused or suspected of committing an offense punishable under the UCMJ, the commander
should seek advice from a judge advocate regarding all possible dispositions of the allegation.
The judge advocate’s advice should include a discussion of the advantages and disadvantages of
each of the available dispositions. The cognizant commander should consider all available
options. If a commander receives a report of a covered offense, they shall promptly forward the
report to a Special Trial Counsel (STC).
2.3. Referral. Probable cause must exist for each charge and specification referred to a court-
martial. Special trial counsel should refer, and judge advocates should recommend that a
convening authority refer charges to a court-martial only if they believe that the servicemember’s
conduct constitutes an offense under the UCMJ, and that the admissible evidence will probably
be sufficient to obtain and sustain a conviction.
In all cases, the special trial counsel or judge advocate advising a convening authority, should
consider the other factors in paragraph 2.1 of this Appendix before deciding whether to refer or
recommend referral to a court-martial, and, in their discretion, make a reasoned determination,
given the profound consequences for the accused, crime victims, and their families.
Evidence sufficient to obtain and sustain a conviction is required under Rule 29(a) of the Federal
Rules of Criminal Procedure, to avoid judgment of acquittal. Because Article 36 encourages the
application of uniform principles of law generally applicable in United States district court, as
both a matter of fundamental fairness and in the interest of the efficient administration of justice,
no charge should be referred to a court-martial unless the special trial counsel, or judge advocate
advising the convening authority, believes that the admissible evidence will probably be
sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.
When deciding whether to refer or recommend referral, the special trial counsel or judge
advocate need not have in hand, at that time, all the evidence upon which they intend to rely at
trial, if they have a reasonable and good faith belief that such evidence will be available and
admissible at the time of trial. For example, it would be proper to refer a case to court-martial
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APPENDIX G for Draft DAC-IPAD Report
even though a key witness may be out of the country, so long as there is a good faith basis to
believe that the witness’s presence at trial could reasonably be expected.
Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due
to impermissible biases a factfinder may harbor is not an appropriate factor for consideration in
the referral decision. Instead, the referral decision should be based on an evaluation of the
evidence as viewed objectively by an unbiased factfinder.
For example, in a case involving a highly decorated Service member, it might be clear that the
evidence of guilt—viewed objectively by an unbiased factfinder—will probably be sufficient to
obtain and sustain a conviction yet the special trial counsel or judge advocate might reasonably
doubt, based on the circumstances, that the court-martial panel would convict. In such a case,
despite their negative assessment of the likelihood of a guilty verdict (based on factors
extraneous to an objective view of the law and the facts), the special trial counsel or judge
advocate may properly conclude that it is appropriate to refer the case and allow the military
justice process to operate in accordance with the principles set forth here.
This guidance promotes the reasoned exercise of prosecutorial discretion and contributes to the
fair, evenhanded administration of the UCMJ. Following this guidance will safeguard
responsibility by special trial counsel in referral decisions and by judge advocates who advise
convening authorities regarding referral decisions and ultimately promote confidence on the part
of the public, the military community, and accused servicemembers that important prosecutorial
decisions will be made rationally and objectively on the merits of each case.
2.4 Determining the Charges and Specifications to Refer. Ordinarily, the convening authority
should refer charges and specifications for all known offenses to a single court-martial. However,
the convening authority should avoid referring multiple charges when they would:
a. Unnecessarily complicate the prosecution of the most serious, readily provable offense or
offenses;
b. Unnecessarily exaggerate the nature and extent of the accused’s criminal conduct or add
unnecessary confusion to the issues at court-martial;
c. Unnecessarily expose the accused to a harsher potential sentence or range of punishments
than the circumstances of the case justify; or
d. Be disposed of more appropriately through an alternative disposition.
2.4. Determining the Appropriate Type of Court-Martial. In determining the appropriate type
of court-martial, a convening authority should consider the advice of a judge advocate.
Additionally, a convening authority or special trial counsel should consider:
a. The advice of a judge advocateThe interests of justice and good order and discipline and
factors set forth in paragraph 2.1 of this Appendix;
b. The authorized maximum and minimum punishments for the offenses charged;
c. Any unique circumstances in the case requiring immediate disposition of the charges;
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d. Whether the type of court-martial would unnecessarily expose the accused to a harsher
potential sentence or range of punishments than the circumstances of the case justify; and
e. Whether the potential of the accused for rehabilitation and continued service would be
better addressed in a specific type of court-martial.
2.5. Alternatives to Referral. If a determination is made that a case should not be referred to
court-martial because there exists an adequate alternative to trial, a judge advocate should advise
the convening authority on, and the convening authority should consider, in addition to the
considerations in paragraph 2.1 the following factors:
a. The effect of alternative disposition on the interests of justice and good order and
discipline;
b. The options available under the alternative means of disposition;
c. The views of the victim, if any, concerning the alternative disposition of the case; and
d. The likelihood of an effective outcome.
2.6. Inappropriate Considerations. The disposition determination must not be influenced by:
a. The accused’s or victim’s race, ethnicity, religion, gender including gender identity-,
sexual orientation, national origin, or lawful political association, activities, or beliefs;
b. The personal feelings of anyone authorized to recommend, advise, or make a decision as
to disposition of offenses concerning the accused, the accused’s associates, or any victim or
witness of the offense;
c. The time and resources already expended in the investigation of the case;
d. The possible effect of the disposition determination on the commander’s, or convening
authority’s, or judge advocate’s, or special trial counsel’s military career or other professional or
personal circumstances; or
e. Political pressure to take or not to take specific actions in the case.
SECTION 3: SPECIAL CONSIDERATIONS
3.1. Prosecution in Another Jurisdiction. When the accused is subject to effective prosecution
in another jurisdiction, the special trial counsel, or the convening authority with the advice of a
judge advocate, should consider the following additional factors when determining disposition:
a. The strength of the other jurisdiction’s interest in prosecution;
b. The other jurisdiction’s ability and willingness to prosecute the case effectively;
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APPENDIX G for Draft DAC-IPAD Report
c. The probable sentence or other consequences if the accused were to be convicted in the
other jurisdiction;
d. The views of the victim, if any, as to the desirability of prosecution in the other
jurisdiction;
e. Applicable policies derived from agreements with the Department of Justice and foreign
governments regarding the exercise of military jurisdiction; and
f. The likelihood that the nature of the proceedings in the other jurisdiction will satisfy the
interests of justice and good order and discipline in the case, including any burdens on the
command with respect to the need for witnesses to be absent from their military duties, and the
potential for swift or delayed disposition in the other jurisdiction.
3.2. Plea Agreements. In accordance with Article 53a, the special trial counsel, or convening
authority with the advice of a judge advocate, may enter into an agreement with an accused
concerning disposition of the charges and specifications and the sentence that may be imposed.
The special trial counsel, or the convening authority with the advice of a judge advocate, should
consider the following additional factors in determining whether it would be appropriate to enter
into a plea agreement in a particular case:
a. The accused’s willingness to cooperate in the investigation or prosecution of others;
b. The nature and seriousness of the offense or offenses charged;
c. The accused’s remorse or contrition and his or her willingness to assume responsibility
for his or her conduct;
d. Restitution, if any;
e. The accused’s criminal history or history of misconduct, whether military or civilian;
f. The desirability of prompt and certain disposition of the case and of related cases;
g. The likelihood of obtaining a conviction at court-martial;
h. The probable effect on victims and witnesses;
i. The probable sentence or other consequences if the accused is convicted;
j. The public and military interest in having the case tried rather than disposed of by a plea
agreement;
k. The time and expense associated with trial and appeal;
l. The views of the victim with regard to prosecution, the terms of the anticipated
agreement, and alternative disposition; and
m. The potential of the accused for rehabilitation and continued service.
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3.3. Agreements Concerning Disposition of Charges and Specifications. With respect to plea
agreements regarding the disposition of charges and specifications, the plea agreement should
require the accused to plead guilty to charges and specifications that:
a. Appropriately reflect the nature and extent of the criminal conduct;
b. Are supported by an adequate factual basis;
c. Would support the imposition of an appropriate sentence under all the circumstances of
the case;
d. Do not adversely affect the investigation or prosecution of others suspected of
misconduct; and
e. Appropriately serve the interests of justice and good order and discipline.
3.4 Agreements Concerning Sentence Limitations. A plea agreement should ensure that any
sentence limitation takes into consideration the sentencing guidance set forth in Article 56(c).
*****************************
Analysis:
This appendix implements Article 33, as amended by Section 5204 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No.
114-328, 130 Stat. 2000 (2016), and section 12 of Executive Order 13825 of March 1, 2018. The
disposition factors contained in this appendix are adapted primarily from three sources: the
Principles of Federal Prosecution issued by the Department of Justice; the American Bar
Association, Criminal Justice Standards for the Prosecution Function; and the National District
Attorneys Association, National Prosecution Standards.
Practitioners are encouraged to familiarize themselves with the disposition factors contained in
this appendix as well as these related civilian prosecution function standards. The disposition
factors have been adapted with a view toward the unique nature of military justice and the need
for commanders, convening authorities, special trial counsel, and judge advocates to exercise
wide discretion to meet their responsibilities to maintain good order and discipline.
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Recommended Training on Uniform Prosecution Standards
Recommendation 50: The DAC-IPAD’s recommendation for uniform
APPENDIX prosecution
H. DAC-IPAD standards
PROPOSAL FOR in
TRAINING
Appendix 2.1 of the Manual for Courts-Martial should be accompanied by training for every
APPENDIX H. inDAC-IPAD
person involved PROPOSAL
the military justice FOR TRAINING
system, including convening authorities.
APPENDIX H for Draft DAC-IPAD Report
The independent exercise of prosecutorial discretion provides a new decision-making paradigm
for military trial
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Draft The DAC-IPAD
DAC-IPAD
Recommended Reportrecommends
Training that, for at least
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collaboration, and community coordination.
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sustainemphasize
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is factfinder.
only if judge advocates and convening authorities believe that the Service member’s conduct
constitutes an offense under the UCMJ, and that the admissible evidence will probably be
sufficient to obtain and sustain a conviction when viewed objectively by an unbiased factfinder.
1
See https://www.ovcttac.gov/views/index.cfm?nm=au.
H-1
H-1
1
See https://www.ovcttac.gov/views/index.cfm?nm=au.
APPENDIX I. HISTORY OF ARTICLES 32, 33, AND 34, UCMJ
APPENDIX
APPENDIXI. HISTORY
I for OF Report
Draft DAC-IPAD ARTICLES 32, 33, AND 34, UCMJ
History of Articles 32, 33, and 34, UCMJ
Since the establishment of the Articles of War in 1775, the military justice system has adapted to
meet the needs of the nation. Over time, long periods of stability have been punctuated by large-
scale changes reflecting developments in the military and in society. Recent changes to military
charging practices, pretrial proceedings, and the role of the judge advocate—including the new
special trial counsel—reflect a 21st-century shift from a commander-driven system with little
involvement of lawyers to a professionalized and independent prosecutorial function which more
closely resembles civilian federal and state systems.
Pretrial Procedures in the Articles of War
During World War I, complaints from soldiers and citizens about the unfairness of the military
justice system led to increased public awareness and systemic reforms. In May 1919, the War
Department convened a board of officers to consider improvements to the military justice
process. 1 In its July 1919 report, the board made the following key criticism of pretrial processes:
due to perfunctory preliminary investigations, or to the total absence of such
investigations, cases in large numbers go to trial which either present no case of
misconduct at all or else one which should have been settled under article 104 by
summary disciplinary action[.] 2
In response, Congress amended the Articles of War in 1920. 3 The changes included the
following provision for a formalized pretrial investigation:
No charge will be referred for trial until after a thorough and impartial
investigation thereof shall have been made. This investigation will include
inquiries as to the truth of the matter set forth in said charges, form of charges,
and what disposition of the case should be made in the interest of justice and
discipline. At such investigation full opportunity shall be given to the accused to
cross-examine witnesses against him if they are available and to present anything
he may desire in his own behalf either in defense or mitigation, and the
investigating officer shall examine available witnesses requested by the accused.
If the charges are forwarded after such investigation, they shall be accompanied
by a statement of the substance of the testimony taken on both sides[.] 4
1
PROCEEDINGS AND REPORT OF SPECIAL WAR DEPARTMENT BOARD ON COURTS-MARTIAL AND THEIR PROCEDURE
(July 17, 1919), available at: https://tile.loc.gov/storage-services/service/ll/llmlp/proceedings/proceedings.pdf
2
Id. at 5. Article 104 was the precursor to Article 15 of the Uniform Code of Military Justice (UCMJ), Nonjudicial
Punishment, and allowed commanders to impose disciplinary action against their troops for minor infractions. See
REPORT OF THE MILITARY JUSTICE REVIEW GROUP, PART I: UCMJ RECOMMENDATIONS 212 [MJRG REPORT],
available at https://jsc.defense.gov/Portals/99/MJRG%20Part%201.pdf 212, citing Articles of War (AW) 104 of
1916 and the Act of May 5, 1950 [Act of May 5, 1950], Pub. L. No. 81-506, ch. 169, 64 Stat. 108.
3
The Articles of War provided for discipline in the U.S. Army. Articles of War, 1920 amendments (June 4, 1920),
[AW of 1920], available at https://tile.loc.gov/storage-services/service/ll/llmlp/RAW-vol1/RAW-vol1.pdf.
4
Id.
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The object of the investigation was as much “to prevent unjust or unnecessary trials … as to
establish the existence of facts upon which the accused may properly be brought to trial. 5
The revisions to Article of War 70 contained the following provision, which was the precursor to
the modern-day Article 34, Uniform Code of Military Justice (UCMJ), pretrial advice: “Before
directing the trial of any charge by general court-martial, the appointing authority will refer it to
his staff judge advocate for consideration and advice.” 6 The legal advice, which had to be
written, informed the convening authority of the following regarding the charged offenses:
(1) whether or not they are correct and complete in form, and (2) appropriate to
the indicated competent evidence in the case; (3) whether or not, in his opinion, a
prima facie case, justifying trial or other proceedings, exists; (4) whether each
specification states an offense cognizable by court-martial; (5) whether the
indicated competent evidence justifies trial on each of the several specifications
and charges, and, if not on all, then on which ones; (6) whether any, and if so
what part, of the evidence, contained in the summaries of the statements of the
witnesses or documents or other evidence submitted is incompetent or improper
to be introduced as evidence at the trial for any reason[.] 7
Pretrial Procedures in the Uniform Code of Military Justice
When World War II brought millions of Americans into military service, public awareness—and
criticism—of the military justice system prompted sweeping change. 8 In 1948, Congress
transformed military justice with the Elston Act, 9 followed quickly by the adoption of the
Uniform Code of Military Justice (UCMJ) in 1950 in response to widespread concerns about a
lack of due process and individual rights in courts-martial proceedings. 10 The enactment of the
UCMJ began a new era in which members of the separate Military Departments were, for the
first time, governed by a single criminal code.
In Article 32 of the UCMJ, Congress codified the requirement that each preferred charge was
supported by an inquiry into the truth and form of that charge. 11 The investigating officer did not
5
MANUAL FOR COURTS-MARTIAL, UNITED STATES ¶76a.8 (1921 ed.) [1921 MCM], available at
https://tile.loc.gov/storage-services/service/ll/llmlp/manual-1921/manual-1921.pdf.
6
AW 70 of 1920, supra note 3.
7
1921 MCM, supra note 5, at ¶76b.
8
John W. Booker, Major, U.S. Army, Improving Uniform Code of Military Justice Reform, 222 MIL. L. REV. 1, 10
(Winter 2014).
9
Military Selective Service Act of 1948, Pub. L. No. 80-759, §§ 201–246, 62 Stat. 604, 627–44 (1948) (commonly
known as the “Elston Act”).
10
See Uniform Code of Military Justice (1950) [UCMJ (1950)]. The UCMJ was enacted on May 5, 1950, with an
effective date of May 31, 1951. The enactment of the UCMJ consolidated the Articles of War, the Articles for the
Government of the Navy, and the disciplinary laws of the Coast Guard. MANUAL FOR COURTS-MARTIAL, UNITED
STATES (1951 ed.), available at https://tile.loc.gov/storage-services/service/ll/llmlp/manual-1951/manual-1951.pdf.
11
See Act of May 5, 1950, supra note 2. That an investigation was required only in cases likely going to a general
court-martial, as opposed to a summary or special court-martial, was established by a 1937 amendment to Article of
War 70, later codified in Article 32 of the UCMJ.
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APPENDIX I. HISTORY OF ARTICLES 32, 33, AND 34, UCMJ
APPENDIX I for Draft DAC-IPAD Report
have to be a judge advocate or possess legal training. Article 33 required that the commander
promptly forward charges to the officer exercising general court-martial authority. Article 34
provided a process for determining, after a thorough investigation, whether a general court-
martial was the appropriate forum for disposition. Article 34 continued to require that convening
authorities consult with their legal advisor on the merits of the case before ordering a trial by
general court-martial. 12
In the Military Justice Act of 1983, Congress responded to the changing nature of the military’s
place within modern American society by significantly amending Article 34. The amendments
explicitly vest in the staff judge advocate—as opposed to the convening authority—
responsibility to determine whether legal prerequisites had been met before a case could be
referred to a general court-martial. 13 The new Article 34 required a determination that each
specification stated an offense under the UCMJ, that a court-martial would have jurisdiction over
the offense, and that the charges were “warranted by the evidence.” 14 This change gave a staff
judge advocate effective veto authority over the convening authority’s referral decision.
National Defense Authorization Act for Fiscal Year 2014
Beginning in 2006, Congress regularly amended the UCMJ through the annual National Defense
Authorization Acts (NDAAs) in response to recurrent nationwide complaints about the military’s
response to sexual assault and the public’s demand for accountability and change in the military
justice system. 15 In the fiscal year (FY) 2014 NDAA, after public outcry over alleged injustices
that took place during an Article 32 hearing at the U.S. Naval Academy, including questioning
the victim for about 30 hours, 16 Congress almost completely revised Article 32. 17 Specifically, it
replaced the “thorough and impartial investigation” that was required by the previous version of
Article 32 18 with a probable cause hearing whose focus was limited to
(1) Determining whether there is probable cause to believe an offense has been committed
and the accused committed the offense.
12
See UCMJ (1950), supra note 10.
13
See Article 34(a) prior to 1983 amendments. MJRG REPORT, supra note 2, at 343.
14
Id.
15
Military sexual assault became a matter of public scrutiny after the 1991 Tailhook scandal in Las Vegas, where at
a military conference 83 women and 7 men were sexually assaulted by over 100 Navy and Marine Corps officers.
See https://archive.org/details/tailhookreport00offi/page/2/mode/1up?view=theater.
16
Jennifer Steinhauer, Navy Hearing in Rape Case Raises Alarm, N.Y. TIMES, Sept. 20, 2013, available at
https://www.nytimes.com/2013/09/21/us/intrusive-grilling-in-rape-case-raises-alarm-on-military-
hearings.html?searchResultPosition=1.
17
National Defense Authorization Act for Fiscal Year 2014 [FY14 NDAA], Pub. L. No. 113-66, § 1702, 127 Stat.
672 (2013). Other major reforms include the significant curtailment of convening authorities’ authority to
disapprove the findings or sentence of a court-martial, as well as a drastic reduction in clemency authority. In
addition, the FY14 NDAA created Article 6b of the UCMJ, the military’s analogue to the federal Crime Victims’
Rights Act (18 U.S.C. § 3771) and directed the Military Services to establish special victims’ counsel programs and
provide legal advice and representation to military victims of sexual assault. This revision applied to Article 32
hearings conducted on or after Dec. 26, 2014.
18
10 U.S.C. § 832 (2012) (UCMJ, Article 32); see also United States v. Henry, 76 M.J. 595, 603 (A.F. Ct. Crim. App. 2017).
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(2) Determining whether the convening authority has court-martial jurisdiction over the
offense and the accused.
(3) Considering the form of charges.
(4) Recommending the disposition that should be made of the case. 19
The revised Article 32 indicated that whenever practicable, an impartial judge advocate should
be appointed to conduct the preliminary hearing. 20 Victims were provided the statutory right to
refuse to testify at the Article 32 preliminary hearing. In lieu of testimony from victims and other
witnesses, a prosecutor might submit alternative forms of evidence, such as recorded or written
statements to law enforcement, for the preliminary hearing officer’s consideration. 21
In 2015 the President amended Rule for Courts-Martial (R.C.M.) 405 by executive order to
implement the new Article 32 preliminary hearing requirements. 22 For the first time, the revised
R.C.M. 405 explicitly stated that “a preliminary hearing conducted under this rule is not intended
to serve as a means of discovery” 23 (emphasis added). The revised rule further provided that
alternatives to live testimony, such as written statements to law enforcement, were admissible
even if the witness or declarant was available to testify.
The revised R.C.M. 405 did not give the preliminary hearing officer the authority to summon
witnesses or compel the production of documents they deem necessary to prove or disprove
elements of the alleged offense(s). As a result, a preliminary hearing officer’s only option, when
faced with charges and evidence they deem insufficient, was to comment in a written advisory
report that the charges lack probable cause. Consequently, a convening authority who received
charges that the preliminary hearing officer found insufficient could either dismiss the relevant
charges, ignore the preliminary hearing officer’s advisory finding and press forward toward
referral to a court-martial, or order another preliminary hearing. 24
The Military Justice Act of 2016
In October 2013, the Secretary of Defense established the Military Justice Review Group
(MJRG), composed of military and civilian criminal law experts, to conduct an intensive and
holistic review of the UCMJ and the entire military justice system. 25 In December 2015, the
MJRG released its report containing recommendations for amending the UCMJ. 26 With some
19
FY14 NDAA, supra note 17, at § 1702.
20
Id.
21
Id.
22
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), R.C.M. 405.
23
Id.
24
John L. Kiel Jr., Lieutenant Colonel, U.S. Army, Not Your Momma’s 32: Explaining the Impetus for Change
Behind Key Provisions of the Article 32 Preliminary Hearing, 7 ARMY LAW. 8, 14 (2016).
25
National Defense Authorization Act for Fiscal Year 2017 [FY17 NDAA], Pub. L. No. 114-328, 130 Stat. 2000
(2016).
26
MJRG REPORT, supra note 3.
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APPENDIX I for Draft DAC-IPAD Report
exceptions, Congress enacted the MJRG’s recommended UCMJ changes in the FY17 NDAA as
the Military Justice Act of 2016. 27
The MJRG conducted its UCMJ review before the FY14 NDAA amendments to Article 32 took
effect; thus, the MJRG did not assess the operation of the new preliminary hearings. Because of
that limitation to the MJRG’s assessment, the Military Justice Act of 2016 included only
relatively minor amendments to Articles 32 and 34—aligning terminology and enhancing how
the preliminary hearing officer’s report informs the referral decision. 28 The MJRG did not collect
any data to assess the cost to the military justice system when convening authorities send cases to
trial after an Article 32 officer has found no probable cause.
Instead, the Military Justice Act of 2016 amended the Article 32 preliminary hearing in two
respects: 29
(1) It allowed the parties and the victim to submit additional information relevant to the
disposition of the case to the preliminary hearing officer after the hearing and required
the preliminary hearing officer to provide an analysis of such submissions; 30 and
(2) It required the preliminary hearing officer to provide a more robust written analysis of the
charges and the underlying evidence than previously directed. 31
Congress also responded to the MJRG’s recommendation to create a new statutory provision
requiring the establishment of non-binding guidance—taking into account the Principles of
Federal Prosecution in the Justice Manual (then called the U.S. Attorney’s Manual)—by entirely
revising Article 33. That revision directed the Secretary of Defense to issue guidance on factors
that commanders, judge advocates, and convening authorities should consider “in the interest of
justice and discipline” when deciding an appropriate disposition for an offense. 32 The new
disposition guidance was intended to fill the gap that exists in military practice between the
probable-cause standard for referral and the more stringent standard for conviction—proof
beyond a reasonable doubt. 33
Notably, the MJRG commented that in civilian practice, this gap “has been filled with structured
decisional principles and charging standards to help guide prosecutors in the prudent and
effective exercise of prosecutorial discretion.” 34 Article 33 requires the Secretary of Defense’s
disposition guidance to “take into account, with appropriate consideration of military
requirements, the principles contained in official guidance of the Attorney General to attorneys
for the Government with respect to disposition of Federal criminal cases in accordance with the
27
FY17 NDAA, supra note 25.
28
FY17 NDAA, supra note 25, at §§ 5203, 5205.
29
Id.; this amendment affected preliminary hearings conducted on or after Jan. 1, 2019.
30
10 U.S.C. § 832(c)(3).
31
Id. at ¶(c)(1).
32
10 U.S.C. §§ 830, 833 (Arts. 30 and 33, UCMJ).
33
MJRG REPORT, supra note 2, at 338.
34
Id.
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principle of fair and evenhanded administration of Federal criminal law.” 35 This is a reference to
the Principles of Federal Prosecution contained in the Justice Manual, which guides attorneys at
the U.S. Department of Justice from the decision to accept or decline prosecution through
participation in sentencing. 36
The Principles of Federal Prosecution serve a critical function for crime victims, the criminally
accused, and the American public: they strengthen consistency and uniformity of case
disposition and confidence in the criminal justice system. 37 They provide that a prosecutor may
commence or recommend prosecution only after determining that probable cause exists to
believe that a suspect has committed a federal offense. 38 In addition, “The attorney for the
government should commence or recommend federal prosecution if he/she believes that the
person’s conduct constitutes a federal offense, that the admissible evidence will probably be
sufficient to obtain and sustain a conviction,” and that the prosecution serves a substantial
federal interest. 39 Notably, the military justice system did not adopt this critical principle of
federal prosecution universally recognized by American prosecutors, and thus fell short of
complete parity with the prosecution standards in the Justice Manual.
Instead, in 2019 the Secretary of Defense published the disposition guidance in Appendix 2.1 of
the Manual for Courts-Martial (MCM). 40 Appendix 2.1 provides a non-exclusive list of factors
that judge advocates and commanders “should” consider with respect to the disposition of
charges at the referral decision stage, and to preserve good order and discipline: 41
a. The mission-related responsibilities of the command;
b. Whether the offense occurred during wartime, combat, or contingency
operations;
c. The effect of the offense on the morale, health, safety, welfare, and good order
and discipline of the command;
d. The nature, seriousness, and circumstances of the offense and the accused’s
culpability in connection with the offense;
e. In cases involving an individual who is a victim under Article 6b, the views of
the victim as to disposition;
f. The extent of the harm caused to any victim of the offense;
g. The availability and willingness of the victim and other witnesses to testify;
h. Whether admissible evidence will likely be sufficient to obtain and sustain a
conviction in a trial by court-martial;
35
Art. 33, UCMJ.
36
MJRG REPORT, supra note 2, at 335; U.S. DEP’T. OF JUSTICE, JUSTICE MANUAL [JUSTICE MANUAL], § 9-27.001
(Principles of Federal Prosecution), available at https://www.justice.gov/jm/justice-manual.
37
JUSTICE MANUAL, supra note 36, § 9-27.001.
38
Id. at § 9-27.200 (Initiating and Declining Prosecution—Probable Cause Requirement).
39
Id. at § 9-27.220 (Grounds for Commencing or Declining Prosecution); emphasis added.
40
MJRG REPORT, supra note 2, at 338.
41
MANUAL FOR COURTS-MARTIAL, UNITED STATES App. 2.1 (2019 ed.) available at
https://jsc.defense.gov/Portals/99/Documents/A-2.1%20Non-Binding%20Disposition%20Guidance%20-
%20SIGNED.pdf.
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APPENDIX I for Draft DAC-IPAD Report
i. Input, if any, from law enforcement agencies involved in or having an interest
in the specific case;
j. The truth-seeking function of trial by court-martial;
k. The accused’s willingness to cooperate in the investigation or prosecution of others;
l. The accused’s criminal history or history of misconduct, whether military or
civilian, if any;
m. The probable sentence or other consequences to the accused of a conviction;
n. The impact and appropriateness of alternative disposition options—including
nonjudicial punishment or administrative action—with respect to the accused’s
potential for continued service and the responsibilities of the command with
respect to justice and good order and discipline.
Whereas the Department of Justice’s Principles of Federal Prosecution establish, as a threshold
matter—prior to a charging decision—that a case should not be prosecuted unless the admissible
evidence will probably be sufficient to obtain and sustain a conviction, the disposition guidance
in Appendix 2.1 lists sufficiency of the evidence as only one of the 14 factors to consider when
deciding whether a general court-martial is appropriate; this is a moment on the military justice
continuum that falls long after the preferral of charges. 42 In the military justice system, the
decision about which charges to prefer is made before considering the likelihood of conviction
on those charges. As a result, military prosecutorial decision making does not mirror the federal
practice of prioritizing the sufficiency of the evidence when commencing or declining
prosecution. 43
To address some of these concerns, Congress—in the Military Justice Act of 2016—amended
Article 34 in several ways. First, the staff judge advocate must conclude in writing that there is
probable cause that the accused committed the offense charged, a stricter criterion than the
previous requirement that the staff judge advocate find that the charge is “warranted by the
evidence” presented in the Article 32 hearing. 44 The amendments also expressly link the staff
judge advocate’s disposition recommendation at referral to the “in the interest of justice and
discipline” standard specified in Article 30(c), UCMJ. 45 Finally, Article 34 now requires the
convening authority to consult a judge advocate prior to referral of charges to a special court-
martial. 46
Establishment of Offices of Special Trial Counsel
Following the recommendations of the IRC, on December 27, 2021, the President signed into
law historic changes to the role of the military prosecutor and the prosecution of select UCMJ
42
Id. at para. 2.1(h).
See American Bar Association Standard 3-4.3, Minimum Requirements for Filing and Maintaining Criminal
43
Charges.
44
Art. 34(a)(1)(B), UCMJ.
45
Art. 34(a)(2). See also Art. 30(c), UCMJ.
46
Art. 34(b), UCMJ. Before the Military Justice Act of 2016, Article 34 was silent as to whether legal consultation
or advice was required prior to referral to a special court-martial.
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offenses. 47 The new provisions grant independent authority to military prosecutors (special trial
counsel) to decide the disposition of charges involving “covered,” “known,” and “related”
offenses (including sexual offenses) at courts-martial. 48 Thus, for covered, known, and related
offenses over which a special trial counsel has authority, the special trial counsel will exercise
prosecutorial discretion, lead the prosecution effort, and exercise most discretionary authority
formerly held by commanders. The special trial counsel’s prosecutorial decisions are binding on
any applicable convening authority—including the decision of whether covered offenses should
be tried at a general court-martial. 49 In practice, every reported allegation of a sexual or other
covered offense must be promptly forwarded to a special trial counsel for disposition. 50 Thus,
special trial counsel have the right of first refusal to determine whether to assert jurisdiction.
Offenses over which special trial counsel exercise authority
1 Art. 117a Wrongful broadcast or distribution of intimate visual images
2 Art. 118 Murder
3 Art. 119 Manslaughter
4 Art. 119a Death or injury of an unborn child
5 Art. 120 Rape and sexual assault generally
6 Art. 120a Mails: deposit of obscene matter
7 Art. 120b Rape and sexual assault of a child
8 Art. 120c Other sexual misconduct
9 Art. 125 Kidnapping
10 Art. 128b Domestic violence
11 Art. 130 Stalking
12 Art. 132 Retaliation
13 Art. 134 Child pornography
14 Art. 134 Sexual harassment
47
See Appendix B, National Defense Authorization Act for FY 2022, Excerpt. See also “Statement by the President
on S. 1605, the National Defense Authorization Act for Fiscal Year 2022,” available at
https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/27/statement-by-the-president-on-s-1605-
the-national-defense-authorization-act-for-fiscal-year-2022/.
48
“Known” and “related” offenses include any offense that the special trial counsel determines to be related to the
covered offense and any other offense alleged to have been committed by the same person.
49
See Appendix B.
50
The Annex to the Draft Executive Order, 2023 Amendments to the Manual for Courts-Martial, United States, 87
Fed. Reg. 63,484 (Oct. 19, 2022).
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APPENDIX I for Draft DAC-IPAD Report
Inchoate offenses:
Covered offenses include (1) Art. 80—attempts; (2) Art. 81—conspiracy; (3) Art. 82—
soliciting commission of offenses.
Effective date:
Special trial counsel exercise authority over offenses (covered, related, or known)
committed on or after December 28, 2023, except for sexual harassment offenses, which
have an effective date of January 2, 2025.
In addition, the new law places special trial counsel under the direct supervision of the civilian
Military Department Secretaries “without intervening authority,” so that they no longer fall
under a military chain of command—including that of The Judge Advocates General. 51
Corresponding changes allow special trial counsel to request that a convening authority appoint a
preliminary hearing officer and create a court-martial for a specified case. 52
Probable cause remains the legal standard for both convening authorities and special trial counsel
to refer cases to trial. 53 However, in the Joint Explanatory Statement accompanying the FY22
NDAA, Congress expressed its view that
when determining whether to refer charges and specifications to a court-
martial for trial, the convening authority, or, when applicable, the special
trial counsel, should first evaluate whether admissible evidence will likely
be sufficient to obtain and sustain a conviction in a trial by court-martial. 54
This Joint Explanatory Statement acknowledges an important distinction between military and
civilian prosecutorial practices: the current rules and guidance applicable to military prosecutors
and commanders do not prioritize the sufficiency of the evidence above other factors relevant to
the prosecutorial disposition decision.
51
National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117–81, §§ 532(a), 534, 536, 135 Stat.
1692 (2021).
52
Id. at § 536(a)(3).
53
Id. at § 537.
54
See Joint Explanatory Statement accompanying the FY22 NDAA.
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APPENDIX J. EXCERPT FROM PRINCIPLES OF FEDERAL PROSECUTION, JUSTICE MANUAL 9-27.001–9-27.300
APPENDIX J.EXCERPT FROM PRINCIPLES OF FEDERAL
APPENDIX J for Draft DAC-IPAD Report
PROSECUTION, JUSTICE MANUAL 9-27.001–9-27.300
The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
9-27.001 - PREFACE
These principles of federal prosecution provide federal prosecutors a statement of prosecutorial policies
and practices. As such, they should promote the reasoned exercise of prosecutorial authority and
contribute to the fair, evenhanded administration of the federal criminal laws.
A determination to prosecute represents a policy judgment that the fundamental interests of society
require the application of federal criminal law to a particular set of circumstances—recognizing both that
serious violations of federal law must be prosecuted, and that prosecution entails profound consequences
for the accused, crime victims, and their families whether or not a conviction ultimately results. Other
prosecutorial decisions can be equally significant. Decisions, for example, regarding the specific charges
to be brought, or concerning plea dispositions, effectively determine the range of sanctions that may be
imposed for criminal conduct. The rare decision to consent to pleas of nolo contendere may affect the
success of related civil suits for recovery of damages. And the government's position during the sentencing
process will help ensure that the court imposes a sentence consistent with 18 U.S.C. § 3553(a).
These principles of federal prosecution have been designed to assist in structuring the decision-making
process of attorneys for the government. For the most part, they have been cast in general terms with a
view to providing guidance rather than to mandating results. The intent is to assure regularity without
regimentation, and to prevent unwarranted disparity without sacrificing necessary flexibility.
The availability of this statement of principles to federal law enforcement officials and to the public serves
two important purposes: ensuring the fair and effective exercise of prosecutorial discretion and
responsibility by attorneys for the government, and promoting confidence on the part of the public and
individual defendants that important prosecutorial decisions will be made rationally and objectively on
the merits of each case. The principles provide convenient reference points for the process of making
prosecutorial decisions; they facilitate the task of training new attorneys in the proper discharge of their
duties; they contribute to more effective management of the government's limited prosecutorial resources
by promoting greater consistency among the prosecutorial activities of all United States Attorney's offices
and between their activities and the Department's law enforcement priorities; they make possible better
coordination of investigative and prosecutorial activity by enhancing the understanding of investigating
departments and agencies of the considerations underlying prosecutorial decisions by the Department;
and they inform the public of the careful process by which prosecutorial decisions are made.
Important though these principles are to the proper operation of our federal prosecutorial system, the
success of that system must rely ultimately on the character, integrity, sensitivity, and competence of
those men and women who are selected to represent the public interest in the federal criminal justice
process. It is with their help that these principles have been prepared, and it is with their efforts that the
purposes of these principles will be achieved.
[updated February 2018]
9-27.110 - PURPOSE
The principles of federal prosecution set forth herein are intended to promote the reasoned exercise of
prosecutorial discretion by attorneys for the government with respect to:
1. Initiating and declining prosecution;
2. Selecting charges;
3. Taking a position on detention or release pending judicial proceedings;
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The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
4. Entering into plea agreements;
5. Opposing offers to plead nolo contendere;
6. Entering into non-prosecution agreements in return for cooperation; and
7. Participating in sentencing.
Comment. Under the federal criminal justice system, the prosecutor has wide latitude in determining
when, whom, how, and even whether to prosecute for apparent violations of federal criminal law. The
prosecutor's broad discretion in such areas as initiating or foregoing prosecutions, selecting or
recommending specific charges, and terminating prosecutions by accepting guilty pleas has been
recognized on numerous occasions by the courts. See, e.g., United States v. LaBonte, 520 U.S. 751, 762
(1997); Oyler v. Boles, 368 U.S. 448 (1962); United States v. Fokker Services B.V., 818 F.3d 733, 741
(D.C. Cir. 2016); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359
F.2d 234 (D.C. Cir. 1965). This discretion exists by virtue of the prosecutor's status as a member of the
Executive Branch, and the President's responsibility under the Constitution to ensure that the laws of the
United States be "faithfully executed." U.S. Const. Art. II § 3. See Nader v. Saxbe, 497 F.2d 676, 679 n. 18
(D.C. Cir. 1974).
Since federal prosecutors have great latitude in making crucial decisions concerning enforcement of a
nationwide system of criminal justice, it is desirable, in the interest of the fair and effective administration
of justice, that all federal prosecutors be guided by a general statement of principles that summarizes
appropriate considerations to be weighed, and desirable practices to be followed, in discharging their
prosecutorial responsibilities.
Although these principles deal with the specific situations indicated, they should be read in the broader
context of the basic responsibilities of federal attorneys: making certain that the general purposes of the
criminal law—assurance of warranted punishment, deterrence of further criminal conduct, protection of
the public from offenders, and rehabilitation of offenders—are adequately met, while making certain also
that the rights of individuals are scrupulously protected.
[cited in JM 9-2.031, JM 9-6.100]
[updated January 2023]
9-27.120 - APPLICATION
In carrying out criminal law enforcement responsibilities, each Department of Justice attorney should be
guided by these principles, and each United States Attorney and each Assistant Attorney General should
ensure that such principles are communicated to the attorneys who exercise prosecutorial responsibility
within his/her office or under his/her direction or supervision.
Comment. It is expected that each federal prosecutor will be guided by these principles in carrying out
his/her criminal law enforcement responsibilities unless a modification of, or departure from, these
principles has been authorized pursuant to JM 9-27.140. However, it is not intended that reference to
these principles will require a particular prosecutorial decision in any given case. Rather, these principles
are set forth solely for the purpose of assisting attorneys for the government in determining how best to
exercise their authority in the performance of their duties.
[updated February 2018]
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APPENDIX J. EXCERPT FROM PRINCIPLES OF FEDERAL PROSECUTION, JUSTICE MANUAL 9-27.001–9-27.300
APPENDIX J for Draft DAC-IPAD Report
The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
9-27.130 - IMPLEMENTATION
Each United States Attorney and responsible Assistant Attorney General should establish internal office
procedures to ensure:
1. That prosecutorial decisions are made at an appropriate level of responsibility, and are made
consistent with these principles; and
2. That serious, unjustified departures from the principles set forth herein are followed by such
remedial action, including the imposition of disciplinary sanctions or other measures, when
warranted, as are deemed appropriate.
Comment. One purpose of such procedures should be to ensure consistency in the decisions within each
office by regularizing the decision -making process so that decisions are made at the appropriate level of
responsibility. A second purpose, equally important, is to provide appropriate remedies for serious,
unjustified departures from sound prosecutorial principles. The United States Attorney or Assistant
Attorney General may also wish to establish internal procedures for appropriate review and
documentation of decisions.
[updated February 2018]
9-27.140 - MODIFICATIONS OR DEPARTURES
United States Attorneys may modify or depart from the principles set forth herein as necessary in the
interests of fair and effective law enforcement within the district. Any modification or departure
contemplated as a matter of policy or regular practice must be approved by the appropriate Assistant
Attorney General and the Deputy Attorney General. Similarly, Assistant Attorneys General overseeing
prosecuting components may modify or depart from the principles set forth herein in the interests of fair
and effective law enforcement, and any modification or departure contemplated by an Assistant Attorney
General as a matter of policy or regular practice must be approved by the Deputy Attorney General.
Comment. Although these materials are designed to promote consistency in the application of federal
criminal laws, they are not intended to produce rigid uniformity among federal prosecutors in all areas of
the country at the expense of the fair administration of justice. Different offices face different conditions
and have different requirements. In recognition of these realities, and in order to maintain the flexibility
necessary to respond fairly and effectively to local conditions, each United States Attorney and Assistant
Attorney General overseeing prosecuting components is authorized to modify or depart from these
principles, as necessary in the interests of fair and effective law enforcement within the district. In
situations in which a significant modification or departure is contemplated as a matter of policy or regular
practice, the appropriate Assistant Attorney General and the Deputy Attorney General must approve the
action before it is adopted.
[cited in JM 9-27.120]
[updated February 2018]
9-27.150 - NON-LITIGABILITY
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The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
These principles, and internal office procedures adopted pursuant to them, are intended solely for the
guidance of attorneys for the government. They are not intended to create a substantive or procedural
right or benefit, enforceable at law , and may not be relied upon by a party to litigation with the United
States.
Comment. The Principles of Federal Prosecution have been developed purely as matter of internal
Departmental policy and are being provided to federal prosecutors solely for their own guidance in
performing their duties. Neither this statement of principles nor any internal procedures adopted by
individual offices create any rights or benefits. By setting forth this fact explicitly, JM 9-27.150 is intended
to foreclose efforts to litigate the validity of prosecutorial actions alleged to be at variance with these
principles or not in compliance with internal office procedures. In the event that an attempt is made to
litigate any aspect of these principles, to litigate any internal office procedures, or to litigate the
applicability of such principles or procedures to a particular case, the attorney for the government should
oppose the attempt. The attorney for the government should also notify the Department of the litigation if
there is a reasonable possibility the government may face an adverse decision on the litigation or if a court
renders an adverse decision.
[updated February 2018]
9-27.200 - INITIATING AND DECLINING PROSECUTION—PROBABLE CAUSE REQUIREMENT
If the attorney for the government concludes that there is probable cause to believe that a person has
committed a federal offense within his/her jurisdiction, he/she should consider whether to:
1. Request or conduct further investigation;
2. Commence or recommend prosecution;
3. Decline prosecution and refer the matter for prosecutorial consideration in another jurisdiction;
4. Decline prosecution and commence or recommend pretrial diversion or other non-criminal
disposition; or
5. Decline prosecution without taking other action.
Comment. JM 9-27.200 sets forth the courses of action available to the attorney for the government
once he/she concludes that there is probable cause to believe that a person has committed a federal
offense within his/her jurisdiction. The probable cause standard is the same standard required for the
issuance of an arrest warrant or a summons upon a complaint (see Fed. R. Crim. P. 4(a)), and for a
magistrate's decision to hold a defendant to answer in the district court (see Fed. R. Crim. P. 5.1(a)), and is
the minimal requirement for indictment by a grand jury. See Branzburg v. Hayes, 408 U.S. 665, 686
(1972). This is, of course, a threshold consideration only. Merely because this requirement can be met in a
given case does not automatically warrant prosecution; further investigation may instead be warranted,
and the prosecutor should still take into account all relevant considerations, including those described in
the following provisions, in deciding upon his/her course of action. On the other hand, failure to meet the
minimal requirement of probable cause is an absolute bar to initiating a federal prosecution, and in some
circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal
sanctions or other measures as well.
[cited in JM 9-10.060; JM 9-2.031]
[updated February 2018]
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APPENDIX J. EXCERPT FROM PRINCIPLES OF FEDERAL PROSECUTION, JUSTICE MANUAL 9-27.001–9-27.300
APPENDIX J for Draft DAC-IPAD Report
The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
9-27.220 - GROUNDS FOR COMMENCING OR DECLINING PROSECUTION
The attorney for the government should commence or recommend federal prosecution if he/she believes
that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be
sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal
interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an
adequate non-criminal alternative to prosecution.
Comment. Evidence sufficient to sustain a conviction is required under Rule 29(a) of the Federal Rules
of Criminal Procedure, to avoid a judgment of acquittal. Moreover, both as a matter of fundamental
fairness and in the interest of the efficient administration of justice, no prosecution should be initiated
against any person unless the attorney for the government believes that the admissible evidence is
sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact. In this connection, it should be
noted that, when deciding whether to prosecute, the government attorney need not have in hand, at that
time, all of the evidence upon which he/she intends to rely at trial, if he/she has a reasonable and good
faith belief that such evidence will be available and admissible at the time of trial. Thus, for example, it
would be proper to commence or recommend a prosecution even though a key witness may be out of the
country, so long as there is a good faith basis to believe that the witness's presence at trial could
reasonably be expected.
Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to
unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the
defendant or his/her cause is not a factor prohibiting prosecution. For example, in a civil rights case or a
case involving an extremely popular political figure, it might be clear that the evidence of guilt—viewed
objectively by an unbiased factfinder—would be sufficient to obtain and sustain a conviction, yet the
prosecutor might reasonably doubt, based on the circumstances, that the jury would convict. In such a
case, despite his/her negative assessment of the likelihood of a guilty verdict (based on factors extraneous
to an objective view of the law and the facts), the prosecutor may properly conclude that it is necessary
and appropriate to commence or recommend prosecution and allow the criminal process to operate in
accordance with the principles set forth here.
However, the attorney for the government’s belief that a person's conduct constitutes a federal offense
and that the admissible evidence will probably be sufficient to obtain and sustain a conviction is not
sufficient standing by itself to commence or recommend prosecution. The prosecution must also serve a
substantial federal interest, and the prosecutor must assess whether, in his/her judgment, the person is
subject to effective prosecution in another jurisdiction; and whether there exists an adequate non-
criminal alternative to prosecution. It is left to the judgment of the attorney for the government to
determine whether these circumstances exist. In exercising that judgment, the attorney for the
government should consult JM 9-27.230, 9-27.240, 9-27.250, and 9-27.260.
[cited in JM 6-4.210; JM 9-10.060; JM 9-27.200; JM 9-28.300]
[updated January 2023]
9-27.230 - INITIATING AND DECLINING CHARGES—SUBSTANTIAL FEDERAL INTEREST
In determining whether a prosecution would serve a substantial federal interest, the attorney for the
government should weigh all relevant considerations, including:
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APPENDIX J for Draft DAC-IPAD Report
The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
1. Federal law enforcement priorities, including any federal law enforcement initiatives or
operations aimed at accomplishing those priorities;
2. The nature and seriousness of the offense;
3. The deterrent effect of prosecution;
4. The person's culpability in connection with the offense;
5. The person's history with respect to criminal activity;
6. The person's willingness to cooperate in the investigation or prosecution of others;
7. The person’s personal circumstances;
8. The interests of any victims; and
9. The probable sentence or other consequences if the person is convicted.
Comment. The list of relevant considerations is not intended to be all-inclusive. Moreover, not all of the
factors will be applicable to every case, and in any particular case one factor may deserve more weight
than it might in another case.
1. Federal Law Enforcement Priorities. Federal law enforcement resources are not sufficient
to permit prosecution of every alleged offense over which federal jurisdiction exists. Accordingly,
in the interest of allocating its limited resources so as to achieve an effective nationwide law
enforcement program, from time to time the Attorney General may establish national
investigative and prosecutorial priorities. These priorities are designed to focus federal law
enforcement efforts on those matters within the federal jurisdiction that are most deserving of
federal attention and are most likely to be handled effectively at the federal level, rather than state
or local level. As just one example, prosecution of offenses within the exclusive territorial
jurisdiction of the United States, where no other avenue of prosecution exists, serves a particular
and important federal interest. In addition, individual United States Attorneys are required to
establish their own priorities (in consultation with law enforcement authorities), within the
national priorities, in order to concentrate their resources on problems of particular local or
regional significance. The Attorney General and individual United States Attorneys may
implement specific federal law enforcement initiatives and operations designed at accomplishing
those priorities. In weighing the federal interest in a particular prosecution, the attorney for the
government should give careful consideration to the extent to which prosecution would accord
with these national and local priorities, as well as federal law enforcement initiatives or
operations designed to accomplish them, whether on a national level or by important impact on
local law enforcement needs. The fact that a particular prosecution is part of a larger federal law
enforcement initiative that serves a substantial federal interest is an appropriate and relevant
consideration in determining whether that individual prosecution also serves such a federal
interest.
2. Nature and Seriousness of Offense. It is important that limited federal resources not be
wasted in prosecuting inconsequential cases or cases in which the violation is only technical.
Thus, in determining whether a substantial federal interest exists that requires prosecution, the
attorney for the government should consider the nature and seriousness of the offense involved. A
number of factors may be relevant to this consideration. One factor that is obviously of primary
importance is the actual or potential impact of the offense on the community and on the victim(s).
The nature and seriousness of the offense may also include a consideration of national security
interests.
The impact of an offense on the community in which it is committed can be measured in several ways: in
terms of economic harm done to community interests; in terms of physical danger to the citizens or
damage to public property; and in terms of erosion of the inhabitants' peace of mind and sense of security.
In assessing the seriousness of the offense in these terms, the prosecutor may properly weigh such
questions as whether the violation is technical or relatively inconsequential in nature and what the public
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APPENDIX J. EXCERPT FROM PRINCIPLES OF FEDERAL PROSECUTION, JUSTICE MANUAL 9-27.001–9-27.300
APPENDIX J for Draft DAC-IPAD Report
The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
attitude may be toward prosecution under the circumstances of the case. The public may be indifferent, or
even opposed, to enforcement of the controlling statute whether on substantive grounds, or because of a
history of non-enforcement, or because the offense involves essentially a minor matter of private concern
and the victim is not interested in having it pursued. On the other hand, the nature and circumstances of
the offense, the identity of the offender or the victim, or the attendant publicity, may be such as to create
strong public sentiment in favor of prosecution. While public interest, or lack thereof, deserves the
prosecutor's careful attention, it should not be used to justify a decision to prosecute, or to take other
action, that is not supported on other grounds. Public and professional responsibility sometimes will
require the choosing of a particularly unpopular course.
3. Deterrent Effect of Prosecution. Deterrence of criminal conduct, whether it be criminal
activity generally or a specific type of criminal conduct, is one of the primary goals of the criminal
law. This purpose should be kept in mind, particularly when deciding whether a prosecution is
warranted for an offense that appears to be relatively minor; some offenses, although seemingly
not of great importance by themselves, if commonly committed would have a substantial
cumulative impact on the community.
4. The Person's Culpability. Although a prosecutor may have sufficient evidence of guilt, it is
nevertheless appropriate for him/her to give consideration to the degree of the person's
culpability in connection with the offense, both in the abstract and in comparison with any others
involved in the offense. If, for example, the person was a relatively minor participant in a criminal
enterprise conducted by others, or his/her motive was non-criminal, and no other factors require
prosecution, the prosecutor might reasonably conclude that some course other than prosecution
would be appropriate.
5. The Person's Criminal History. If a person is known to have a prior conviction or is
reasonably believed to have engaged in criminal activity at an earlier time, this should be
considered in determining whether to commence or recommend federal prosecution. In this
connection, particular attention should be given to the nature of the person's prior criminal
involvement, when it occurred, its relationship, if any, to the present offense, and whether he/she
previously avoided prosecution as a result of an agreement not to prosecute in return for
cooperation or as a result of an order compelling his/her testimony. By the same token, a person's
lack of prior criminal involvement or his/her previous cooperation with the law enforcement
officials should be given due consideration in appropriate cases.
6. The Person's Willingness to Cooperate. A person's willingness to cooperate in the
investigation or prosecution of others is another appropriate consideration in the determination
whether a federal prosecution should be undertaken. Generally speaking, a willingness to
cooperate should not by itself relieve a person of criminal liability. There may be some cases,
however, in which the value of a person's cooperation clearly outweighs the federal interest in
prosecuting him/her. These matters are discussed more fully below, in connection with plea
agreements and non-prosecution agreements in return for cooperation.
7. The Person's Personal Circumstances. In some cases, the personal circumstances of an
accused may be relevant in determining whether to prosecute or to take other action. Some
circumstances particular to the accused, such as extreme youth, advanced age, or mental or
physical impairment, may suggest that prosecution is not the most appropriate response to
his/her offense; other circumstances, such as the fact that the accused occupied a position of trust
or responsibility which he/she violated in committing the offense, might weigh in favor of
prosecution.
8. The Interests of Any Victims. It is important to consider the economic, physical, and
psychological impact of the offense, and subsequent prosecution, on any victims. It is appropriate
for the prosecutor to take into account such matters as the seriousness of the harm inflicted and
the victim’s desire for prosecution. Prosecutors may solicit the victim’s views on the filing of
charges through a general conversation without reference to any particular defendant or charges.
For more information regarding the Department’s obligations to victims, see the Crime Victims’
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APPENDIX J for Draft DAC-IPAD Report
The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
Rights Act, 18 U.S.C. § 3771, the Victims’ Rights and Restitution Act, 34 U.S.C. § 20141, and
the Attorney General Guidelines for Victim and Witness Assistance. When considering whether
to initiate a prosecution or pursue an alternative resolution, such as a deferred or non-
prosecution agreement, prosecutors should be aware of the possible effect the decision may have
on the Department’s ability to compensate victims of the underlying crimes and on the Crime
Victims Fund (CVF). The CVF is a statutorily created fund that is financed by fines and penalties
paid by convicted federal offenders. See 34 U.S.C. § 20101. Money from the CVF is used to
support federal, tribal, state, and local crime victim assistance programs and to help compensate
crime victims across the country. Pursuant to statute, almost all criminal fines collected following
conviction are deposited into the CVF, along with all Special Assessments. See 34 U.S.C. §
20101(b)(1). In contrast, fines collected pursuant to a deferred prosecution or non-prosecution
agreement are not deposited into the CVF but rather are sent to the General Fund of the
Treasury. See 31 U.S.C. 3302(b).
9. The Probable Sentence or Other Consequence. In assessing the strength of the federal
interest in prosecution, the attorney for the government should consider the sentence, or other
consequence, that is likely to be imposed if prosecution is successful, and whether such a sentence
or other consequence would justify the time and effort of prosecution. If the offender is already
subject to a substantial sentence, or is already incarcerated, as a result of a conviction for another
offense, the prosecutor should weigh the likelihood that another conviction will result in a
meaningful addition to his/her sentence, might otherwise have a deterrent effect, or is necessary
to ensure that the offender's record accurately reflects the extent of his/her criminal conduct. For
example, it might be desirable to commence a bail-jumping prosecution against a person who
already has been convicted of another offense so that law enforcement personnel and judicial
officers who encounter him/her in the future will be aware of the risk of releasing him/her on
bail. On the other hand, if the person is on probation or parole as a result of an earlier conviction,
the prosecutor should consider whether the public interest might better be served by instituting a
proceeding for violation of probation or revocation of parole, than by commencing a new
prosecution. The prosecutor should also be alert to the desirability of instituting prosecution to
prevent the running of the statute of limitations and to preserve the availability of a basis for an
adequate sentence if there appears to be a chance that an offender's prior conviction may be
reversed on appeal or collateral attack. Finally, if a person previously has been prosecuted in
another jurisdiction for the same offense or a closely related offense, the attorney for the
government should consult existing departmental policy statements on the subject of "successive
prosecution" or "dual prosecution," depending on whether the earlier prosecution was federal or
nonfederal. See JM 9-2.031 (Petite Policy).
There are also considerations that deserve no weight and should not influence the decision, such as the
time and resources already expended in federal investigation of the case. No amount of investigative effort
warrants commencing a federal prosecution that is not fully justified on other grounds.
[cited in JM 9-2.031; JM 9-27.220; JM 9-27.250; JM 9-27.620]
[updated November 2022]
9-27.240 - INITIATING AND DECLINING CHARGES—PROSECUTION IN ANOTHER JURISDICTION
In determining whether prosecution should be declined because the person is subject to effective
prosecution in another jurisdiction, the attorney for the government should weigh all relevant
considerations, including::
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APPENDIX J. EXCERPT FROM PRINCIPLES OF FEDERAL PROSECUTION, JUSTICE MANUAL 9-27.001–9-27.300
APPENDIX J for Draft DAC-IPAD Report
The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
1. The strength of the other jurisdiction's interest in prosecution;
2. The other jurisdiction's ability and willingness to prosecute effectively; and
3. The probable sentence or other consequences if the person is convicted in the other jurisdiction.
When declining prosecution, or reviewing whether federal prosecution should be initiated, the attorney
for the government should: (1) consider whether to discuss the matter under review with state, local, or
tribal law enforcement authorities for further investigation or prosecution; and (2) coordinate with those
authorities as appropriate. The attorney for the government should be especially aware of the need to
coordinate with state, local, and tribal law enforcement authorities, and shall do so as permitted by law,
when declining a matter that involves an ongoing threat or relates to acts of violence or abuse against
vulnerable victims, including minors. The attorney for the government should document these
coordination efforts, where undertaken, when federal prosecution is declined.
Comment. In many instances, it may be possible to prosecute criminal conduct in more than one
jurisdiction. Although there may be instances in which a federal prosecutor may wish to consider
deferring to prosecution in another federal district, or to another government, in most instances the
choice will probably be between federal prosecution and prosecution by state or local authorities. The
factors listed in JM 9-27.240 are illustrative only, and the attorney for the government should also
consider any others that appear relevant to his/her particular case.
1. The Strength of the Jurisdiction's Interest. The attorney for the government should
consider the relative international, federal, state, and tribal interests with regard to the alleged
criminal conduct. Some offenses, even though in violation of federal law, are of particularly strong
interest to the authorities of the jurisdiction in which they occur (e.g., local, state, or foreign),
either because of the nature of the offense, the identity of the offender or victim, the fact that the
investigation was conducted primarily by foreign, state, or local investigators, or some other
circumstance. Whatever the reason, when it appears that the federal interest in prosecution is less
substantial than the interest of local, state, or foreign authorities, consideration should be given to
referring the case to those authorities rather than commencing or recommending a federal
prosecution.
2. Ability and Willingness to Prosecute Effectively.In assessing the likelihood of effective
prosecution in another jurisdiction, the attorney for the government should also consider the
intent of the authorities in that jurisdiction and whether that jurisdiction has the prosecutorial
and judicial resources that are necessary to undertake prosecution promptly and effectively. Other
relevant factors might be legal or evidentiary problems that might attend prosecution in the other
jurisdiction. In addition, the federal prosecutor should be alert to any local conditions, attitudes,
relationships, or other circumstances that might cast doubt on the likelihood of the other
authorities conducting a thorough and successful prosecution.
3. Probable Sentence Upon Conviction. The ultimate measure of the potential for effective
prosecution in another jurisdiction is the sentence, or other consequence, that is likely to be
imposed if the person is convicted. In considering this factor, the attorney for the government
should bear in mind not only the statutory penalties in the jurisdiction and sentencing patterns in
similar cases, but also, the particular characteristics of the offense or of the offender that might be
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APPENDIX J for Draft DAC-IPAD Report
The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
relevant to sentencing. He/she should also be alert to the possibility that a conviction under
another jurisdiction’s laws may, in some cases, result in collateral consequences for the
defendant, such as disbarment, that might not follow upon a conviction under federal law.
[cited in JM 5-11.113; JM 9-27.220; JM 9-28.1100]
[updated October 2021]
9-27.250 - NON-CRIMINAL ALTERNATIVES TO PROSECUTION
In determining whether there exists an adequate, non-criminal alternative to prosecution, the attorney for
the government should consider all relevant factors, including:
1. The sanctions or other measures available under the alternative means of disposition;
2. The likelihood that an effective sanction will be imposed;
3. The effect of non-criminal disposition on federal law enforcement interests; and
4. The interests of any victims.
Comment. When a person has committed a federal offense, it is important that the law respond
promptly, fairly, and effectively. This does not mean, however, that a criminal prosecution must be
commenced. In recognition of the fact that resort to the criminal process is not necessarily the only
appropriate response to serious forms of antisocial activity, Congress and state legislatures have provided
civil and administrative remedies for many types of conduct that may also be subject to criminal sanction.
Examples of such non-criminal approaches include civil tax proceedings; civil actions under the False
Claims Act or other statutory causes of action for false or fraudulent claims; civil actions under the
securities, customs, antitrust, or other regulatory laws; administrative suspension and debarment or
exclusion proceedings; civil judicial and administrative forfeiture; and reference of complaints to licensing
authorities or to professional organizations such as bar associations. Another potentially useful alternative
to prosecution in some cases is pretrial diversion. See JM 9-22.000.
Attorneys for the government should familiarize themselves with these alternatives and should consider
pursuing them if they are available in a particular case. Although on some occasions they should be
pursued in addition to criminal prosecution, on other occasions these alternatives can be expected to
provide an effective substitute for criminal prosecution. In weighing the adequacy of such an alternative
in a particular case, the prosecutor should consider the nature and severity of the sanctions or other
measures that could be imposed, the likelihood that an adequate sanction would in fact be imposed, and
the effect of such a non-criminal disposition on federal law enforcement interests. When considering
whether to pursue a non-criminal disposition, prosecutors should consider the interests of any victims
and be aware that any fines collected under such agreement will not be deposited into the Crime Victims
Fund, but will rather go to the General Treasury. See Comment to JM 9-27.230. In evaluating victim
interests and determining whether to pursue a non-criminal disposition, the prosecutor should be
available to confer with the victim in furtherance of the Crime Victims’ Rights Act (CVRA) and in
accordance with the Attorney General Guidelines for Victim and Witness Assistance. For more
information regarding the Department’s obligations to victims, see the Crime Victims’ Rights Act, 18
U.S.C. § 3771, the Victims’ Rights and Restitution Act, 34 U.S.C. § 20141, and the Attorney General
Guidelines for Victim and Witness Assistance.
It should be noted that referrals for non-criminal disposition may not include the transfer of grand jury
material unless an order under Rule 6(e) of the Federal Rules of Criminal Procedure, is obtained. See
United States v. Sells Engineering, Inc., 463 U.S. 418 (1983).
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APPENDIX J. EXCERPT FROM PRINCIPLES OF FEDERAL PROSECUTION, JUSTICE MANUAL 9-27.001–9-27.300
APPENDIX J for Draft DAC-IPAD Report
The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
[cited in JM 9-27.220; JM 9-28.1100]
[updated November 2022]
9-27.260 - INITIATING AND DECLINING CHARGES—IMPERMISSIBLE CONSIDERATIONS
In determining whether to commence or recommend prosecution or take other action against a person,
the attorney for the government may not be influenced by:
1. The person's race, religion, gender, ethnicity, national origin, sexual orientation, or political
association, activities, or beliefs;
2. The attorney's own personal feelings concerning the person, the person's associates, or the victim;
or
3. The possible effect of the decision on the attorney's own professional or personal circumstances.
In addition, federal prosecutors and agents may never make a decision regarding an investigation or
prosecution, or select the timing of investigative steps or criminal charges, for the purpose of affecting any
election, or for the purpose of giving an advantage or disadvantage to any candidate or political
party. See § 9-85.500.
[updated August 2022]
9-27.270 - RECORDS OF PROSECUTIONS DECLINED
Whenever an attorney for the government declines to commence or recommend federal prosecution,
he/she should ensure that his/her decision and the reasons therefore are communicated to the
investigating agency involved and to any other interested agency, and are also reflected in the office files
to ensure an adequate record of disposition of matters that are brought to the attention of the government
attorney for possible criminal prosecution, but that do not result in federal prosecution. When
prosecution is declined in serious cases on the understanding that action will be taken by other
authorities, appropriate steps should be taken to ensure that the matter receives their attention.
[updated February 2018]
9-27.300 - SELECTING CHARGES—CHARGING MOST SERIOUS OFFENSES
Once the decision to prosecute has been made, the attorney for the government should charge and pursue
the most serious, readily provable offenses. By definition, the most serious offenses are those that carry
the most substantial guidelines sentence, including mandatory minimum sentences.
However, there will be circumstances in which good judgment would lead a prosecutor to conclude that a
strict application of the above charging policy is not warranted. In that case, prosecutors should carefully
consider whether an exception may be justified. Consistent with longstanding Department of Justice
policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant
Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General,
and the reasons must be documented in the file.
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APPENDIX J for Draft DAC-IPAD Report
The U.S. Department of Justice, Justice Manual
Principles of Federal Prosecution, 9-27.001–9-27.300
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution
To ensure consistency and accountability, charging and plea agreement decisions must be reviewed by a
supervisory attorney. All but the most routine indictments should be accompanied by a prosecution
memorandum that identifies the charging options supported by the evidence and the law and explains the
charging decision therein. Each United States Attorney’s Office and litigating division of the Department
is required to promulgate written guidance describing its internal indictment review process.
Comment. Once it has been determined to commence prosecution, either by filing a complaint or an
information, or by seeking an indictment from the grand jury, the attorney for the government must
determine what charges to file or recommend. When the conduct in question consists of a single criminal
act, or when there is only one applicable statute, this is not a difficult task. Typically, however, a defendant
will have committed more than one criminal act and his/her conduct may be prosecuted under more than
one statute. Moreover, the selection of charges may be complicated further by the fact that different
statutes have different proof requirements and provide substantially different penalties. In such cases,
considerable care is required to ensure selection of the proper charge or charges. In addition to reviewing
the concerns that prompted the decision to prosecute in the first instance, particular attention should be
given to the need to ensure that the prosecution will be both fair and effective.
At the outset, the attorney for the government should bear in mind that he/she will have to introduce at
trial admissible evidence sufficient to obtain and sustain a conviction, or else the government will suffer a
dismissal, or a reversal on appeal. For this reason, he/she should not include in an information, or
recommend in an indictment, charges that he/she cannot reasonably expect to prove beyond a reasonable
doubt by legally sufficient and admissible evidence at trial.
In connection with the evidentiary basis for the charges selected, the prosecutor should also be
particularly mindful of the different requirements of proof under different statutes covering similar
conduct. For example, the bribe provisions of 18 U.S.C. § 201 require proof of "corrupt intent," while the
'"gratuity" provisions do not. Similarly, the "two witness" rule applies to perjury prosecutions under 18
U.S.C. § 1621 but not under 18 U.S.C. § 1623.
JM 9-27.300 also expresses the principle that a defendant generally should be charged with the most
serious offenses that are encompassed by his/her conduct, and that are readily provable. As noted above,
this ordinarily will be the offenses that carry the most substantial guidelines sentence, including
mandatory minimum sentences. Where two crimes have the same statutory maximum and the same
guideline range, but only one contains a mandatory minimum penalty, the one with the mandatory
minimum is the more serious. Similarly, in cases involving a theft or fraud offense that also involve an
aggravated identity theft charge, 18 U.S.C. § 1028A, prosecutors should ordinarily charge the predicate
offense (which likely would carry the highest guidelines sentence) and the identity theft offense (which
carries a mandatory minimum). This principle provides the framework for ensuring equal justice in the
prosecution of federal criminal offenders. It guarantees that every defendant will start from the same
position, charged with the most serious criminal act he/she commits. Of course, he/she may also be
charged with other criminal acts (as provided in JM 9-27.320), if the proof and the government's
legitimate law enforcement objectives warrant additional charges. /p>
[cited in JM 9-27.400; JM 9-28.1200; JM 9-100.020]
[updated February 2018]
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APPENDIX K. DAC-IPAD PROFESSIONAL STAFF
APPENDIX K. DAC-IPAD PROFESSIONAL STAFF
Appendix K. DAC-IPAD Professional Staff
PROFESSIONAL STAFF
Colonel Jeff A. Bovarnick, U.S. Army, JAG Corps, Executive Director
Ms. Julie K. Carson, Deputy Director
Mr. Dale L. Trexler, Chief of Staff
Ms. Theresa Gallagher, Attorney-Advisor
Ms. Nalini Gupta, Attorney-Advisor
Ms. Amanda Hagy, Senior Paralegal
Mr. R. Chuck Mason, Attorney-Advisor
Ms. Marguerite McKinney, Management & Program Analyst
Ms. Meghan Peters, Attorney-Advisor
Ms. Stacy Powell, Senior Paralegal
Ms. Stayce Rozell, Senior Paralegal
Ms. Terri Saunders, Attorney-Advisor
Ms. Kate Tagert, Attorney-Advisor
Ms. Eleanor Magers Vuono, Attorney-Advisor
COMMITTEE CONSULTANTS
Dr. Alice Falk, Technical Writer-Editor
Ms. Laurel Prucha Moran, Graphic Designer
Dr. William “Bill” Wells, Criminologist
K-1
APPENDIX L. ACRONYMS AND ABBREVIATIONS
APPENDIX L. ACRONYMS AND ABBREVIATIONS
Appendix L. Acronyms and Abbreviations
ABA American Bar Association
DAC-IPAD Defense Advisory Committee on Investigation, Prosecution, and Defense
of Sexual Assault in the Armed Forces
DoD Department of Defense
DOJ Department of Justice
FY fiscal year
GCMCA general court-martial convening authority
IRC Independent Review Commission on Sexual Assault in the Military
JPP Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial
Proceedings Panel)
MCIO military criminal investigative organization
MCM Manual for Courts-Martial
MJRG Military Justice Review Group
NDAA National Defense Authorization Act
NDAA National District Attorneys Association
OSTC Office of Special Trial Counsel
PC probable cause
PHO preliminary hearing officer
R.C.M. Rule for Courts-Martial
RFI request for information
ROI entire report of investigation
TJAG The Judge Advocate General
STC special trial counsel L-1
OSTC Office of Special Trial Counsel
PC probable cause
REPORT ON REFORMING PRETRIAL PROCEDURES AND ESTABLISHING UNIFORM PROSECUTION STANDARDS
PHO preliminary hearing officer
R.C.M. Rule for Courts-Martial
RFI request for information
ROI entire report of investigation
TJAG The Judge Advocate General
Appendix L. Acronyms and Abbreviations
STC special trial counsel
UCMJ Uniform Code of Military Justice
L-1
L-2
APPENDIX M. SOURCES CONSULTED
APPENDIX M.Sources
Appendix M. SOURCES
Consulted CONSULTED
1. U.S. Constitution
U.S. CONST. amend. IV
U.S. CONST. amend. V
2. Legislative Sources
a. Enacted Statutes
Articles of War, 1920 amendments (June 4, 1920)
Military Selective Service Act of 1948, Pub. L. No. 80-759, §§ 201--246, 62 Stat. 604, 627-44
(1948)
10 U.S.C. §§ 801 – 940 (Uniform Code of Military Justice) (1950)
10 U.S.C. § 824a (2023) [Effective Dec. 27, 2023]
10 U.S.C. § 832 (2012)
10 U.S.C. § 832 (2014)
10 U.S.C. §§ 826, 826a, 830, 830a, 832–834, 837 (2019 & 2021 supp.)
National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, 126 Stat. 1632 (2012)
National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013)
Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year
2015, Pub. L. No. 113-291, 128 Stat. 3292, 3374 (2014)
National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016)
National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, 132 Stat. 1761 (2018)
National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, 133 Stat. 1198 (2019)
National Defense Authorization Act for Fiscal Year 2022, S.1605, 117th Cong. (2021)
National Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117–263, 136 Stat. 2395
(2022)
b. Congressional Records and Hearings
Congressional Record – House, 159 Cong. Rec. H7059 (Nov. 14, 2013)
A Bill to Promote the Administration of Military Justice by Amending Existing Laws Regulating
Trial by Court-Martial, and for Other Purposes: Hearings Before the Committee on
Military Affairs, United States Senate, S. 5320, (Feb. 13, 1919)
3. Judicial Decisions
a. U.S. Supreme Court
Illinois v. Gates, 462 U.S. 213 (1983)
Serfass v. United States, 420 U.S. 377 (1975)
Brinegar v. United States, 338 U.S. 160 (1949)
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Humphrey v. Smith, 336 U.S. 695 (1949)
b. U.S. Circuit Courts of Appeals
United States v. Dionisio, 503 F.3d 78 (2d Cir. 2007)
c. U.S. Court of Appeals for the Armed Forces
United States v. Darnall, 76 M.J. 326 (C.A.A.F. 2017)
United States v. Leedy, 65 M.J. 208 (C.A.A.F. 2007)
United States v. Samuels, 27 C.M.R. 280 (1959)
United States v. Bell, 44 M.J. 403 (C.A.A.F. 1996)
U.S. v. Barry, 78 M.J. 70 (C.A.A.F. 2018)
d. Service Courts of Criminal Appeals
United States v. Meador, 75 M.J. 682 (U.S.C.G.C.C.A. 2016)
United States v. Howe, 37 M.J. 1062 (N-M. C.M.R. 1993)
United States v. Hanabarger, No. 201900031, 2020 CCA LEXIS 252 (N-M. Ct. Crim. App. July 30, 2020)
United States v. Lewis, No. 201900049, 2020 CCA LEXIS 199 (N-M. Ct. Crim. App. June 8, 2020)
United States v. Hyppolite, No. ACM 39358, 2018 CCA (A.F.C.C.A. Oct. 25, 2018)
United States v. Henry, 76 M.J. 595 (A.F. Ct. Crim. App. 2017)
4. Rules and Regulations
a. Executive Orders
Manual for Courts-Martial, United States (1921 ed.)
Manual for Courts-Martial, United States (1951 ed.)
Manual for Courts-Martial, United States (2012 ed.)
Manual for Courts-Martial, United States (2016 ed.)
Manual for Courts-Martial, United States (2019 ed.)
Draft Executive Order, 2023 Amendments to the Manual for Courts-Martial, United States,
87 Fed. Reg. 63,484 (Oct. 19, 2022)
b. Department of Defense and Military Services
Air Force Instruction 51-201, Administration of Military Justice (Jan. 18, 2019)
Army Regulation 27-26, Rules of Professional Conduct for Lawyers (June 28, 2018)
Department of the Navy, JAG Instruction 5803.1E, Professional Conduct of Attorney Practicing
Under the Cognizance and Supervision of the Judge Advocate General (Jan. 20, 2015)
Air Force Instruction 51-110, Professional Responsibility Program (Dec. 11, 2018)
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Appendix M. Sources Consulted
Commandant Instruction M5800.1, Coast Guard Legal Professional Responsibility Program
(June 1, 2005)
c. Other Agencies
Federal Rules of Criminal Procedure, Notes of Advisory Committee on Rules (2002)
5. Meetings and Hearings
Transcript of DAC-IPAD Public Meeting (Aug. 23, 2019)
Transcript of DAC-IPAD Public Meeting (Nov. 15, 2019)
Transcript of DAC-IPAD Public Meeting (Feb. 14, 2020)
Transcript of DAC-IPAD Public Meeting (Nov. 6, 2020)
Transcript of DAC-IPAD Case Review Working Group Meeting (Aug. 23, 2018)
Transcript of DAC-IPAD Policy Subcommittee Meeting (Dec. 3, 2020)
6. Military and Civilian Federal Policy
a. Department of Defense and Military Services
Non-binding Disposition Guidance, accompanying the Manual for Courts-Martial, Appendix 2.1
United States (2019 ed.)
Memorandum from Secretary of Defense, DoD Advisory Committees—Zero-Based Review
(Jan. 30, 2020)
Memorandum from Secretary of Defense, Sexual Assault Prevention and Response (Aug. 14, 2013)
Memorandum from Secretary of Defense, Commencing DoD Actions and Implementation to
Address Sexual Assault and Sexual Harassment in the Military (Sept. 22, 2021)
Department of the Army Pamphlet 27-17, Procedural Guide for Article 32 Preliminary Hearing Officer
(June 18, 2015)
Department of the Navy, The Article 32 Preliminary Hearing Officer’s Guide (Feb. 2019)
Air Force Legal Operations Agency, Military Justice Division (AFLOA/JAJM), Article 32
Preliminary Hearing Officer’s Guide (June 24, 2019)
b. Other Agencies
U.S. Department of Justice, Justice Manual
United States. Office of Justice Programs. Office for Victims of Crime. New Directions
from the Field: Victim’s Rights and Services for the 21stt Century (1997)
American Bar Association, ABA Standards for Criminal Justice: Standards for the
Prosecution Function (4th ed. 2017)
National District Attorneys Association, National Prosecution Standards (4th ed. 2023)
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King County, Washington, Prosecuting Attorney’s Filing and Disposition Standards (Rev. Nov. 2021)
7. Official Reports
a. DoD and DoD Agency Reports
Independent Review Commission on Sexual Assault in the Military, Hard Truths and the Duty to
Change: Recommendations from the Independent Review Commission on Sexual Assault
in the Military (July 2021)
Report of the Fort Hood Independent Review Committee (Dec. 2020)
Military Justice Review Group, Report of the Military Justice Review Group, Part I:
UCMJ Recommendations (Dec. 22, 2015)
Special U.S. War Department Board, Proceedings and Report of Special War Department Board
on Courts-Martial and Their Procedure (July 17, 1919)
Reports of the Military Services to Congress, Report on Military Justice for Fiscal Year 2020
(Dec. 31, 2020)
b. Response Systems to Adult Sexual Assault Crimes Panel [Response Systems Panel] Report
Response Systems Panel, Report of the Response Systems to Adult Sexual Assault Crimes Panel
(June 2014)
Comparative Systems Subcommittee to the Response Systems Panel, Annex to the Report of the
Response Systems to Adult Sexual Assault Crimes Panel: Report of the Comparative
Systems Subcommittee (May 2014)
c. Judicial Proceedings Since Fiscal Year 2012 Amendments Panel
[Judicial Proceedings Panel] Reports
Judicial Proceedings Panel, Report on Panel Concerns Regarding the Fair Administration of
Military Justice in Sexual Assault Cases (Sept. 2017)
Judicial Proceedings Panel, Report on Statistical Data Regarding Military Adjudication of
Sexual Assault Offenses (Apr. 2016)
d. Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual
Assault in the Armed Forces (DAC-IPAD) Reports
DAC-IPAD, Third Annual Report (Mar. 2019)
DAC-IPAD, Fourth Annual Report (Mar. 2020)
DAC-IPAD, Court-Martial Adjudication Data Report (Nov. 2019)
DAC-IPAD, Report on Investigative Case File Reviews for Military Adult Penetrative Sexual
Offense Cases Closed in Fiscal Year 2017 (Oct. 2020)
8. Scholarly Articles
Booker, John W., Major, U.S. Army, Improving Uniform Code of Military Justice Reform, 222 Mil.
L. Rev. 1, 10 (Winter 2014)
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Appendix M. Sources Consulted
Kiel, John L. Jr., Lieutenant Colonel, U.S. Army, Not Your Momma’s 32: Explaining the Impetus
for Change Behind Key Provisions of the Article 32 Preliminary Hearing, Army Law (2016)
David A. Schlueter, Reforming Military Justice: An Analysis of the Military Justice Act of 2016,
St. Mary’s University School of Law (2017)
Kostik, Frank E., Lieutenant Colonel, U.S. Army, and Elizabeth L. Lippy, Consequence of Change:
An Argument to Increase Litigation Experience to Fill the Void Left by the Changes to the
Preliminary Hearing in the Military Justice System, 43 Am. J. Trial Advoc. (Fall 2019)
Max Jesse Goldberg, Congressional Influence on Military Justice, 130 The Yale Law Journal 2110 (2021)
Jennifer G. Long and Elaine Nugent-Borakove, Beyond Conviction Rates: Measuring Success in
Sexual Assault Prosecutions, Strategies Issue 12 (Apr. 2014)
Jeremy S. Weber, Colonel, U.S. Air Force, Whatever Happened to Good Order and Discipline?
125 Clev. St. L. Rev. 123 (2017)
Mitchell M. Suliman, Probable Cause and the Provable Case: Bridging the Ethical Gap that
Exists in the Military Justice System, 49 Hofstra Law Review 187 (Fall 2020)
Rachel E. VanLandingham, Acoustic Separation in Military Justice: Filling the Decision Rule
Vacuum with Ethical Standards, 11 Ohio St. J. Crim. L. 389 (2014)
9. Reference Books
Wayne LaFave, Jerold Israel, Nancy King, & Orin Kerr, Criminal Procedure (4th ed. 2019 update)
Army Criminal Law Deskbook (2021)
The Wolters Kluwer Bouvier Law Dictionary Desk Edition (2012)
Ballentine’s Law Dictionary (3rd ed. 2010)
Black’s Law Dictionary Online
10. Requests for Information and Responses
Military Services’ Responses to DAC-IPAD Request for Information Set 11 (June 2019)
Military Services’ Responses to DLSA Request for Information (Oct. 2021)
11. News Articles and Press Releases
Jennifer Steinhauer, “2 Face Court-Martial in Naval Academy Assault Case,”
New York Times (Oct. 10, 2013)
Rebecca Boone, “Bergdahl appeals court-martial over Trump, McCain comments,”
Associated Press (Mar. 2, 2019)
Thomas Spoehr, “Dismantling the military justice system will not reduce sexual assault,”
The Hill (July 13, 2021)
Michel Paradis, “The Biden Administration Joins the Military Justice Reform Debate as it Heats
Up in the Senate,” LawFare (July 27, 2021)
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Jan Ransom, “‘Nobody Believed Me’: How Rape Cases Get Dropped,”
New York Times (July 19, 2021)
Press Release, Inhofe Releases Letters from Top Military Officials Citing Serious Concerns with
Military Justice Improvement and Increasing Prevention Act (June 22, 2021)
12. Letters, Emails, and Other Media
Letter from Mr. William Castle, Acting General Counsel for the Department of Defense,
to the DAC-IPAD Chair Martha Bashford (June 7, 2018)
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