A collateral effect of the “new” Article 32 PH

Under the “old” Article 32, the right to call and examine witnesses and to obtain production (discovery) of evidence was pretty robust.

All Services except the Air Force and Coast Guard routinely recorded the audio of the hearing.  That audio could then be transcribed into a verbatim transcript.  The benefit to the government was that in the event a witness became unavailable at trial, there existed a “deposition,” or at least something akin to a deposition which could be used in evidence at trial in the extreme case.

The Article 32 testimony as substitute for the actual appearance of the witness is guided by United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (to be admissible, must be verbatim); United States v. Burrow, 16 U.S.C.M.A. 94, 36 C.M.R. 250; Pointer v. Texas, 380 U.S. 400 (1965)(testimony might be received only if “taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Id., at page 407.

This was a reason I always wondered why the Air Force and Coast Guard didn’t record the 32.  Although the cynical thought was that it prevented the defense from having a record to use for impeachment.

But here is the question for the current Article 32 pretrial hearing.  Can the hearing be properly used as a substitute for a deposition, and testimony used in evidence should a witness become unavailable for trial.  I think the answer should be NO.  Largely I think this is because of the intent to avoid discovery and an appropriate amount of cross-examination of witnesses who did attend.  There is now almost no discovery and the ability to cross-examine witnesses who do appear is more limited.  Thus there is a strong constitutional argument that trying to use a transcript of Article 32 testimony violates the Sixth Amendment Confrontation Clause.

While the likelihood of needing prior testimony may not be a frequent event, there may come another day where this collateral impact of changing the Article 32 may come back to haunt.  On balance the intent to adversely affect the ability of the defense to prepare for and defend against a charge has been accomplished-but at a cost to a potential prosecution.