DAC-IPAD Report on Reforming Pretrial Procedures and Establishing Uniform Prosecution Standards R-48a

June 2023

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.

IMPLEMENTATION: No legislative change as of Jan 2024.

DAC-IPAD Report on Reforming Pretrial Procedures and Establishing Uniform Prosecution Standards R-48b

June 2023

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 shown. 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.

IMPLEMENTATION: No response from Congress or DoD as of Jan. 2024.

DAC-IPAD Report on Reforming Pretrial Procedures and Establishing Uniform Prosecution Standards R-49

June 2023

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.

IMPLEMENTATION: On Oct. 24, 2023, SecDef signed revised Appendix 2.1 Disposition Guidance for the MCM implementing Recommendation 49. The new language reads: 2 1  Interests of Justice and Good Order and Discipline  a. Whether admissible evidence will probably be sufficient to obtain and sustain a finding of guilty in a trial by court-martial when viewed objectively by an unbiased factfinder; 2 3  Referral. b. A special trial counsel should not refer, and a staff judge advocate or other judge advocate involved in the disposition process should not recommend that a convening authority refer, a charge to a court-martial unless the special trial counsel, staff judge advocate, or other judge advocate believes 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 finding of guilty when viewed objectively by an unbiased factfinder.

DAC-IPAD Report on Reforming Pretrial Procedures and Establishing Uniform Prosecution Standards R-50

June 2023