[indiscernible] and its implementing rule for courtmartial provide an effective check against charges for which there is no probable cause . I think for the past several years the procedural requirements have diminished greatly, and one significant changeis the statutory to eliminate the requirement for victims that testify. Thatresult, in many cases is the most significant evidence in most cases where a victim chooses not to testify, the government is making its case based on the file. I will say that those changes over time have reduced the procedural requirements of article 32 but i still think it is a valuable check. An experienced judge advocate looking at the case and that the evidence. There is also the opportunity for the defense to present evidence, and as a former staff i have seen even in those diminished proceedings where an article 32 officer will make note or make findings that are relevant for me to consider and a highlight to the convening authority when i am providing my advice on this position. I think it was built into the system for a reason, and i still think that reason exists currently. Agree and emphasize two points, first that the article 32 in its current form still features a neutral and detached preliminary hearing officer providing advice to the Community Authority and advocate, making a determination or recommendation is probable cause. That is still value added. In addition, under the current rules, it does give the defense, the victim, and the government thatpportunity to consider we are not presented at the hearing itself. There is an additional avenue in which information can be brought to the decisionmaker. I agree. Article 32 still performs a valid function. One thing that is not captured in the timelines is that these preliminary hearing officers are also taking hours of video interviews with other witnesses or parties other witnesses or parties. Sometimes even including the accused within the interrogation. Its important when you put the 32 preliminary report into context, it usually involves an interview with the Victim Company to interview, that is usually an hour or two long that covers a number of issues. Thats just an important part in the analysis in the preliminary hearing. I probably sound like a broken record, because im going to echo most of the sentiments. I think Lieutenant Colonel king points out a good point, that while the hearing itself seem somewhat abbreviated, that when you go back and look at the evidence that is being reviewed and the time spent doing that, sometimes victim interviews can be four to five hours long and , and they are reviewing every bit of those and all videotaped now, because a military criminal investigating officer, offices are videotaping those, victim and suspect interviews. Answer all of that stuff is being provided, and its being reviewed by the investigative officer. So while the content of the hearing or the actual hearing may be very abbreviated, i think going through that through investigation could take hours and hours if you think would point out is that oftentimes i know the other services to the special, but in air force take with Sexual Assault cases or penetrative Sexual Assault cases, we have sitting military judges that would be the preliminary hearing officer. Not only neutral and detached but very experienced military judges who have been come to understand the probable cause standard extremely well who are able to then make a recommendation to the staff judge advocate thats well thought out and well reasoned. I guess for my view is that the article 32 has transformed itself from what it originally had intended, so early intended was more of a tool for the defense. Yes, the i. O. Was there to look at all available facts and evidence to make and a partial determination, but it was a discovery tool for the defense and also the defense could put on a very, very deliberate , extenuatinggation evidence as well. That transformed in 2014, as we all know, and now its genes begin a look at in 2019. So from that standpoint the original purpose of article to just change. Its a probable cause hearing for those of us is. I think its fine. Does it perfect the governments s case . I dont think thats intent of article 32. Its put on as what is necessary to get the pc. Talking to some in the field , they are frustrated some of it is just a paper review, and they do last as little as 15 minutes with a just handed literally the record of investigation. So from that standpoint, i dont think its very helpful. As far as the government is concerned, it gets some notice to the defense. While there may be some other features the other services have talked about, i dont want to not highlight that there is some level of paper shuffle. And i dont know how much its more informed convening authority because of it. If they could read the roi as well. Is the entire investigative file turned in, are portions turn in . Is the summary of it given to the 32 officer . Capt. Tasikas no. I talked yesterday about it from a particular case, and it was not adult Sexual Assault. This child Sexual Assault can put in an limited amount of roi , and the defense one of the entire roi submitted. I would say it depends on the strategy and notion of the trial counsel itself, so i think its casebycase. Im speculating, and i dont like to speculate, i would assume most of done is just our roi. I cant be certain to that. Col. Pitvorec for the air force, i know that we try to focus on the actual evidence that contained within the roi. We would point to more wikipedia tapes that were done from the cio as well as any statements that are contained by witnesses that are not present to testify. But for us, office of the special investigations the thoughts and feelings selfcontained at the beginning of the roi does not go before the investigative officer , because i dont believe thats relevant. Lt. Col. King similar response for the marine corps. In some instances, you may have an entire roi presented to the article 32 officer by the government, but in some instances, we may look at a complete self owned extraction that includes every text message the accused sent for one year. We wouldnt provide the entire enclosure to the investigation. We would pull an excerpt from. For the navy, its case dependent as to the services. And similar with the army. As the government puts on evidence they believed relevant and helpful to obtaining probable cause, and the good of the parts brought in by other parties to echo with other services that, but again, they government typically starts with those key relevant pieces of evidence. Judge brisbois so section b32, whether or not theres probable cause to be the accused committed the offense charged, thats the general provisions giving the authority investigating officer. In some cases, its judge advocate. Sometimes its not a judge advocate but judge advocate but by. Sometimes it military judge or military magistrate. Regardless of the process, if theres a finding that there is not probable cause, that does not result in a dismissal without prejudice, does it . No. It does not. Thats an essence the recommendation that would then go to the next level of convening authority, which have convening authority appointed that investigation for their determination. Im sorry, to the point it is not binding on. Judge brisbois thats consistent throughout the services. Judget is correct and brisbois so its really not a true preliminary hearing in the sense of my federal court or even the state courts with omnibus hearings or delimiter hearings where if the government fails to show probable cause according to the judicial officer, the neutral and detached officer, the case is dismissed without prejudice. They can be brought back, renewed if further investigation gives a new basis. But thats the end of the case, right . In our system, that check is held at this statute adjective level. The convening authority would receive the premier had officers report, and if your cd from the show probable that would be determinative. Judge brisbois is that consistent throughout the services . Thats correct. Thats correct for the air force. As well as the coast guard. Judge brisbois and the staff judge advocate however is in the role of the Legal Advisor to the convening authority, so staff judge advocate is not in a true sense a neutral detached as a magistrate judge would be or as military the miniature military judicial system is a stovepipe, standalone system, which their decisions and recommendations, the rulings cannot be adversely impacted other careers, correct . Theres independent built into the system. I think, if i may, the original idea article 32 and 34 was to ensure that baseless charges that we do courtmartial, and i am talking again pre2014, taken together those vehicles were to ensure again baseless charges that shouldnt see the inside of a general courtmartial anyways. Maybe a summary or mjp. Those kind of protections, and so some of the features wouldve carried over, for example, the waiver still remains. So the q says i waive my right. To article 32. That doesnt have to accept by the convening authority but they do that the accused you dont have determination to article 32. Still resides with the convening authorities and the advice of the sga. We have jurisdiction and theres probable cause these offenses were committed and specification. Just to ensure the very basic aspects of the case go forward, but the other features of conviction or what for form and all those things, those are still reasonable determination at the discretion of the convening authority. Its just they are different than civilian context. So we try to make an analysis to analogize article 32. I just think its a different creature altogether, at least creature altogether, at least least original designed, and now it has kind of morphed into something else, and i dont think making a direct comparison is helpful. Col. Pitvorec i would agree, and i would add a couple of points. As staff judge advocate, i really tried very hard to evaluate the evidence that was presented at the article 32 by the preliminary hearing officer. I try to take a good fresh eyed look at whats going on. As a staff judge advocate, you are not personally involved in the court, so youre trying to pull yourself back and actually get a good perspective on, not only whats going on in this particular case, but you should be read into whats right for the good order display of the unit you are serving. I think a staff judge advocate, it sometimes that goes awry. Sometimes people get too close , but the goal is really for the staff judge advocate if they are advising a neutral and detached convening authority sit down and try to remain neutral and detached as well. The other part of that is, i know for the air force and doubly for the other services, its always a judge advocate who doesnt article 32. Its was a judge advocate that is a preliminary hearing officer. We try hard to make sure that they have the right training and the right experience before becoming a preliminary hearing officer. Thats not always possible given timelines and whats going on. The staff judge advocate is not limited to the four corners of the document that is presented by the preliminary hearing officer. As far as making him the defense counsel, the trial counsel and the sdc or vlc for the other Victims Counsel can provide Additional Information to the staff judge advocate thats going to the convening authority. So while the neutral and detached preliminary hearing officer gets evidence that can make a recommendation, the staff judge advocate is not limited to only that information that goes to the convening authority in determining whether or not there is probable cause. Sir, the marine corps agrees with the position that the 32 preliminary hearing officer probable cause determination should not be a binding decision. And it is important look at the Historical Context and the role of the command and the role of the sja in that process. The commanding, the convening authority shouldnt abdicate their role in the process to the preliminary hearing officer. The sja does have essentially the veto power with that probable cause determination, and they are in a position to look at the entire evidence for a particular case. And also give the command an informed decision. And that is really what this process is, is designed to do. The article 32 process is to help give the commander and informed decision on the evidence, and then the sja also assists with that informed decision process. Contextthe historical is important, because you look at the qualifications for the actual preliminary hearing officer. In most circumstances, your staff judge advocate is going to be a more experienced judge advocate than the preliminary hearing officer. There are some instances were military judges have served as preliminary hearing officers, but thats not a requirement and , and in that circumstance, you may have a preliminary hearing officer that has less experience than the sja who is looking at the same evidence, but is also using their experience to provide that commander with the informed decision. I echo that but would also say there are checks in place that either the convening authority are staff judge advocate has less interest in the case, individual can be disqualified. It is a a complex system of checks and balances and i would agree that although different, the federal civilian system and the military system are different, both have pathways to a binding determination of no probable cause. I would echo a lot of the prior comments that my colleagues made in this, but the way i understood your question to start was that the united staff judge advocate isnt neutral and detached. They are part of the prosecution. It is true the prosecution are involved under the supervision of staff judge advocate, but i think the staff judge advocate is over all responsible for providing the convening authority the advice on the military Justice System, and they have an interest and have an obligation to advise the convening authority on those interests of discipline that might warrant prosecution as well as justice in making sure that privilege charges baseless charges dont go to trial. Frivolous charges i think the 32 and for the ultimate advice that that experienced staff judge advocate provides to the convening authority in making a decision to refer a case to trial. And again, the 34, the advice under article 34, 10usc834, that is not just whether theres probable cause. That is in essence a low subjective standard of whether a probable cause existed the of the value and the key portion of the staff judge advocate recommendation under article 34 is the recommendation as to disposition. Thats where the sja is saying yes, there if theres a finding by the staff judge advocate that theres no probable cause, thats binding on the convening authority. The case cant proceed forward. However, if the recommendation where the sja is advising that convening Authority Based on that experience, based on the full review of the case file in terms of whats the right disposition, whether it is referral to a courtmartial or taking some other action. Judge brisbois thank you. We are going to be looking to asking some questions on the bit about whether the 32 officers finding of no probable cause should be binding, but i noted in your introductory remarks these 32 judges with the most experienced and highly trained, very experienced military, experience at the right thing, until we Start Talking whether the recommendation should be binding, and then maybe not so much. [laughter] so my question for you before we get to that is, if the finding of no probable cause isnt binding, and if its really kind of a paper chase at this point, because i believe very few complainants actually elect to testify at the article 32 these days, kind of whats the point . Like, why not just didnt go straight to the staff judge advocate if hes got access to more information, why are we even bothering with having these very experienced people taken away from the other duties to look at hours and hours of video and read the hundreds of pages of paper . Let me start with you, captain tasikas. Capt. Tasikas well, i think it is a good question. Again, i think i would like to go back again to why article 32 came into existence in the first place, and it was a check of sorts against the plenary authority. It was not i necessary but open. The accused had a right to counsel, to cross examine, to present evidence, to lay out the defense, constitutional defense, mitigation, and affirm defense. That was quite useful for the convening authority because if there was a case on the margins, they would want to have an article 32 to flesh this out and maybe a case would go way if you away, if you will, because there wasnt a strong inclination. Now with the probable cause determination, its less helpful in that regard. However, i think it does give some level protection to the accused again on the 30 basic tenets of what the looking for, are looking for, the scope of the Current Article 32. Issues of again is the specification actually a crime . Is there jurisdiction . Lately retirees have become an issue of whether or not those are jurisdictional issues. So there is just against a floor theyre looking at, a very basic, to ensure they have the basic notions of jurisdictional and other substantive issues before they go forward with the crime. I dont think it is there again to perfect a case for the government or for prosecution. Its i think a very narrow protection again for the accused. In that regard, its helpful. It would think he is more broad and more expansive, and i would argue going back to the pre2014 article 32, which was very informative for both the defense and for the prosecution convening authority. So i believe that the preliminary officer does provide fresh eyes on the case. I think they can take a look at the form of the charges. They can recommend, particularly in penetrative sexual offenses, the greater offense whether or not theres sufficient force, whether or not theres not forced, whether it should be a lesser offense. And i do believe that it still provides the defense a forum to provide evidence. I think that is a unique aspect of article 32, is defense has the ability to provide evidence to the preliminary hearing officer and, therefore, really directly to the convening authority to get whatever evidence that they deem is relevant and necessary in making a recommendation as to disposition of charges. Before the person whos actually making that recommendation. So i do believe that it still has a value to our system. I will agree, however, that weve got a lot more information in a prior iteration of the article 32. It was much more comprehensive. You had a better idea what disposition of charges, what the charges should look like, particularly in an era where the charges themselves have changed dramatically over the course of the last, probably, i think, 12 or 13 years. Weve had many, many changes to article 120 over the timeframe. Having someone with ice look at make sure you look at the right charge timeframe for that particular iteration of article 120 is important to look at. I agree. It does still have an important procedural function. The fresh eyes description is a good one. I think that, in addition to the points already mentioned, you have the ability to conduct a detailed charging analysis, and process, and focusing back on the informed decision for the commander and providing the commander with an informed decision. Article 32 also provides the staff judge advocate with a more informed decision. It provides a forum for the accused to present a challenge to a particular charging theory, if there are charges. The accused not present a case or testify or call witnesses, but it does give the defense the opportunity to present challenges to the charges themselves, and it would enable the sja to also have a more informed decision. There certainly can be some improvements procedurally. In our written comments, we mentioned that the ideal scenario would be to have a military judge serve as a preliminary hearing officer. We have not advocated for the military judges recommendation to be binding, but in certain cases in the marine corps, where there is a complex charg in theory, or if were looking at some offenses that involve murder allegations, we have brought in military judges to serve as the preliminary hearing officer. And in those instances, we do feel the commander and the staff judge advocate are provided with the most informed decisions prior to referral. Capt. Monahan so i believe the system benefits in every case , which is article 32 in that the defense and government can depending on the facts of the case derive a benefit from its current iteration. The current iteration of article 32 provides an opportunity for qualified judge advocates conduct a deep dive into the facts present at the article 32 preliminary hearing to include what is commonly submitted several hours of investigative video, recorded interviews with alleged victims, witnesses and sometimes the accused. And that provides the preliminary hearing officer or fall an opportunity to prepare a company to charging analysis for comprehensive to prepare a company to charging analysis for to prepare a comprehensive charging analysis for the benefit of staff judge advocate and convening authority. Now, if a case is particularly weak, whether or not the recommendation of no probable cause only is adopted by the convening authority, the defense can still gain the benefit from the comprehensive analysis , because a wellwritten article 32 f. O. E. s report can provide a roadmap to an acquittal at a contested trial. Because it points out the flaws in the comments case which a savvy defense counsel can use to a wellwritten f. O. E. Report to his or her advantage. But in a particular strong case , i would argue that the government can use a wellwritten f. O. E. Report to its benefit because they can incentivize a guilty plea if a guilty pleas wanted under the facts, because the defense will see from a qualified neutral and detached judge advocate laying out why the case is so strong against their client. So i do see even under its current iteration article 50 does provide benefits to all parties and most important to the system. Col. Pflaum so im actually going to start by disagreeing with the marine on just one minor point, and at my peril i , i believe. [laughter] col. Pflaum on the fact whether you should have judges, at a Formal Garden for judge on 32 if that will was taken away. I think that is valued and it seemed that income for example, perhaps a capital case or something along those lines. But as a matter of practice, i disagree with that. Maybe from a logistics experience but also a logistics issue also i dont think necessary. I think at least in my experience with offices in the rank of major who are judge advocates performing the f. O. E. Role, and i think they did a marvelous job and exact with the article 32 and rcm 405 were designed to get at. So just on that point. But will agree with my colleagues that it is still a value. On a number of different levels. The first one is for me as a staff judge advocate i benefited from a formal process by which the government presented its case, the defense had an opportunity to present its evidence and those given to me in a report i could then utilize and advise the convening authority. It is too early in a full prosecution process to be required to be binding. Theres lot of work that can be as captain monahan referred to, any statement after the 32. The case is incomplete at that point. You made the point at the 32 if it were binding it could be dismissed with prejudice and the government could come back and try again, but that in the process would require going all the way back to the referral process in cases which could add at time and delay, whereas as captain monahan referred to, the government and or the defense can take that 32 and six the fix the issues in the case and fix their case as the proceeds forward as long as there is probable cause, and the recommendation is to dispose of the case by general courtmartial. I do believe theres value. There was value to me in a a formal process having a neutral and detached judge advocate look above such of the case, having the prosecutors bring their case to an outside party for evaluation in getting that analysis by that officer. Chair bashford so several of you lamented while clearly there is value in this process, the process has changed. Its not what it used to be. Weve heard a couple suggestions about what you would like to see different, but from all of you, can you talk to us about recommendations to the 32 process that you would each like to see to make the process more meaningful . And we can start with whomever. And we can so again i just i going a lot of comments but i would like to point out that the current process that we have is a a floor, not a ceiling. So i think, i think its incumbent upon the services to push down to the young trial counsel that are presenting evidence that it doesnt have to just barely meet the probable cause standard. Thats one of the things that we are constantly United States our young judge advocates, is again its the floor. Youre building a case for probable cause. I am the voice of restraint. Would seriousness, i respect, with caution, before further radical change to our system, because every change of significance has second and third order effect, that wellmeaning people may not participate . How about the armys recommendation to go back to the the orthe i. O. Had the p. H. O. , excuse me, have the Legal Authority to go ferret out the information the p. H. O. Needed. The p. H. O. That does not seem like a very major change. Capt. Monahan yes. And for the record, that is nonresponsive. [laughter] risk of abdicating colonel pflaum again [laughter] on therecommendation military judge is certainly one that would provide analysis, statistically, that would be possible if we were a Smaller Service and had you are cases to work with them all but that is one that i think the use some analysis, if that were even to be feasible, but some of the things on the margins for the 32 i think will improve and will continue to approve, the capabilities to a roof proceedings, improved technology in our rooms, that we can have , to open upe 32s witnesses remotely, who may not want travel. That is one area that we can improve the process, and it has gotten much better to hold these remote proceedings, but i think it and be improved in certain circumstances. Col. Pitvorec so, again, i am just echoing a lot of comments, but i would like to point out that the current process that we have is a a floor, not a ceiling. So i think, i think its incumbent upon the services to push down to their young trial counsel that are presenting evidence that it doesnt have to just barely meet the probable cause standard. Thats one of the things that we are constantly United States our young judge advocates, is again its the floor. Youre building a case for probable cause. The government in and of itself to we should be transparent. We should be pushing evidence out there. And just because the victim in the case can elect not to testify doesnt mean that there isnt buckets of evidence that either corroborate or doesnt, that version of events. And so to the extent that, i dont know, perhaps change it on the market and i agree we need to seek evidence, theres a lot of stuff to include digital evidence out there that would be nice to be able to read. But i do think that as the services that we really need to be pushing information down that says look, just because you can barely meet the probable cause, just because youre barely met the probable cause standard does mean thats what this hearing was intended to do. And theres nothing wrong with adding more evidence and letting people consider more evidence in an article 32 investigation. And we really should be beefing that up. I think internally meeting those requirements. I dont know we need changes to the ucmj, but i do think internally our service it really should be pushing that information, look, you need to be doing better. You need to be adding more evidence that just because its a floor doesnt mean you just need to barely clear that. You need to add what would be helpful to the convening authority to make that informed decision. Lt. Col. King i think its a good question. Ill just add that, i wanted to employ people are lamenting about the article 32. It depends on where you sit or stand if youre perhaps trial counsel you find a very valuable. But there was a policy determination a few years ago that changed article 32 to equities of the victim in place at the lahore to stay in the system or see see a case to go to courtmartial because of the perceived notion of article 32 as it was currently constituted. Acting anyways. There is no perfect fix. I think what you do is theres pluses and minuses. You just have no which are losing out by changing and what youre gaining by which are changing. Theres no perfect system. Again, talking historically, when the military first brought in lawyers im sure they were not happy with that. A few years ago, when the sccs were brought in, a lot of people were not happy with that, but now theyre part of the system and part of our culture, part of military Justice System , and they are facilitating a policy, objective if you will. I would not suggest we change article 32 if we are changing it for lawyers, convening authorities. One last point. Going back prior to 2014, convening efforts would take those tough cases of article 32 to flush the outside the dakota courtmartial if they were thickly weak cases were Nigel Seymour cases go to courtmartial and maybe get a higher acquittal rate. Thats just the reality of how it is, and so if youre willing to live with that i think article 32 is ok. If you want to article 32 is more robust so you dont have to go to courtmartial, then the old system is probably better. I wouldnt say better, i would say its different is how i look at it. Chair bashford ms. Peters, we will move on to section two if people want to come back, a time period which have a lot to cover with this panel. Ms. Peters [inaudible] ants a victim w courtmartial, and it has been met, the victim can have his or day in court. How does this approach nonbinding factors such as whether the admissible evidence likely be sufficient to obtain and sustain a conviction in a trial like courtmartial . I would request i think this question is the time to the air force respond and then have the other services weigh in on the weight they give to that factor, the ability to obtain and sustain the conviction at referral. Col. Pitvorec thank you. I know the air force is an outlier on this, because, you look at the probable cause standard and the referral standard and take into consideration the wants of the victim. When we evaluate whether or not that probable cause standard has been that and we have cooperating victim, we choose to go forward. I know that is not necessarily excuse me what every other service does, and i respect that haveight that they to differ in their opinion. What i would say to that is, is that we have a lot of cases that go forward and evidence is developed as we are Going Forward on that case. Evidence is accumulated, we are gathering information, and we are going out, and again like me , like i mentioned before, we should be corroborating every fact of consequence that you can, that the victim asserts in her testimony. And if you are doing that, you can get convictions in cases that you did previously think, that you didnt briefly think that were a slamdunk or taken into consideration, that there was a probability or a high probability of a conviction. And so if we are training our prosecutors to do their very best, and you have a credible, reliable victim that wants to participate, we feel strongly that probable cause standard allows us to go forward in that case and gives the victim the opportunity to say what they want to say in court before, before the military judge and members and whoever else happens to be present. Chair bashford go through and see what the rest of the services say. So i would like to thank our service is different, but i would suggest probably the coast guard probably has a similar mindset with convening authorities. If you have a victim who is would like to participate in the military Justice System and would like to see their court go case for courtmartial, that is a huge ingredient in the decisionmaking process. Then the conviction, the likelihood of conviction is important, very important, significant but probably not determinative. In that regard, i think it is a little problematic because convening authorities are not going to be secondguessed if they send case to courtmartial. They will be if they dont, especially if you have a willing participant in a courtmartial case. So there is a little bit of friction there that you cannot deny. I think you look at this objectively, so some outsider observers may be that as problematic. Now they get a fair trial, and thats what theyre entitled to, so in that regard, its a fair process. There is certain factors that a think i may be different in these types of cases than maybe others. Lt. Col. King i agree with the coast guards perspective, that the strength of the evidence is certainly a a factor. Its an important factor, and i would say that the victim preference and the strength of the evidence in sex assault case are probably the two most difficult factors to weigh considering the other appendix 2. 1 factors in a sex assault case that of lean towards moving forward to courtmartial, such as the seriousness of offense and lean towards moving to a courtmartial. I also agree with captain tasikas, in most cases, in most cases where the victim wants to move forward, and the evidence may not certainly result in a conviction, we are going to lean towards moving forward to a courtmartial. A lot of that centers around the fact that determining the likelihood of the conviction is so difficult at that stage of trial, when you havent seen sworn testimony at that point from any other witnesses or the victim, and we are going to err on the side of moving forward in that circumstance. Now there are certainly some situations where you can look at the evidence and determine that it is very likely this is going to result in an acquittal, but in sex assault cases, that situation is a rare. Its very rare. So we find ourselves in a similar position where were going to move forward in most of the circumstances where we have a victim that wants to participate. Capt. Monahan so i believe the likelihood of conviction or the likelihood that evidence to support a conviction, which is a factor in the article 33 mandated nonbinding guidelines is a very important consideration for convening authorities when they bring cases forward. Because as a system of justice we should take our cases to , trial, cases that may not, that, you know, it is not clear if the conviction will be obtained or not. We should take those hard cases to trial, but on the other hand, cases that although meeting the probable cause standard have a very low probability of success, i think that the vast majority of cases, its not advisable to take those cases to trial. And if we do take those cases to trial that have very low probability of success, then i believe that if they inevitably result in acquittal, there is no gain for the system. I believe the navys program and the responses indicated that although all victims are different, they have said universally most victims feel a negative emotional effect after full acquittal, which is intuitively obvious, right . But then you look at the accused, and i believe defense counsel assistant program might testify many accused who are found not guilty of Sexual Assault fence can many times offense can many times after that acquittal will leave the service, because they feel that the service has turned the back on them through the result of the process. From a systemic standpoint, i also believe that its an advisable to take cases with a very low probability of success to trial because that case may consume vital resource that might be otherwise dedicated the cases that have stronger chance for success here, so those are my thoughts on the matter. Col. Pflaum so to start, first off from the armys perspective , i would not characterize it as a policy or and advise best practice in the army. That if theres probable cause , and the victim wants to go forward, that we go forward as a matter of course. Item preference is of course a key consideration. Its listed in the nonbinding disposition guidance and is a factor that ways on convening authorities as important to the convening authority, because they are in the interest of justice, victims views and desires matter and are important. But that has to be considered in light of all of the other factors that others have articulated in determining whether to take the case to trial. Of course the availability of admissible evidence to obtain and sustain a conviction. There is no mathematical formula that i used or that im aware of, victim preferences, 65 , et cetera. Its all provide in the package thats advised, brought to the convening authority to make a disposition decision on that case. But that disposition, the decision to refer a a case to trial is based on probable cause. And as weve articulated, i think, throughout, there is other evidence thats obtained. There are other investigative efforts that continue to take place at that case is approaching trial, and one of those is input from the defense. That is one factor that, as this process is proceeding, the defense does have a say in an adversarial process. So they can choose to participate in article 32, or they could not, but certainly at trial, they have evidence. They have a side of the story that comes out that affects conviction rates. And so at the referral decision there is a need to consider all , of the criteria and advising. But it just make a disposition decision solely, to make a disposition decision, theres a lot that can change after that initial disposition decision. I would be loathe to advise convening authority in a case where a victim wants to participate and evidence is otherwise strong to not go forward, because theres also a risk of criticism, i think, as easily as it could be slides of the talk about conviction rates. There could also be slides talking about nondisposition rates. To where a commander is elected to choose some alternative disposition or cannot try a case that someone else was otherwise meritorious. Col. Pitvorec i think we both want to add something. I just wanted to add i think one of the things we are seeing routinely these days is about the special Victims Counsel and the area defense counsel or the defense counsel in the case begin talking and discussing alternative dispositions that would not otherwise happen if we were not referring cases to trial. So i do think that we have a high incidence of a discharge. And rule of were marshall. Courtmartial. We have a high incidence of ideas of how the victims and the accused can both be satisfied with the process it, but that only comes after a referral. And i think thats an important factor. I am not saying that the air force does it specifically to get to that. The idea is we are going to trial, i think the reality is that their alternative dispositions are available that are sometimes used and utilized based upon the decision to go forward in the case. If i can add, the system is society can for military context. We talked about reasonable likelihood of conviction and then low probability of conviction. Those are easy calls and theres ambiguity in between and have probable cause standard. So i would envision a convening authority to send case of Sexual Assault to courtmartial because, for example, your very senior officer or Commanding Officer who is having an affair with a married subordinate, for example, and there might be some issues with favoritism, fraternization, and if the person wants to break it off , there is a course of nature just in the right. You would send the case to a courtmartial with the Sexual Assault allegation, because you still have fraternization. You still have adultery. Thats why have the probable cause standard Sexual Assaulter i get the conviction because of all probability and regional likelihood. You may. Theres always a possibility but the point is, is that those types of cases are where i think Mildred Justice context is different than sipping context and sending a Sexual Assault case to a traffic those on the cases the system is designed to ensure Commanding Officer and keeping authorities have that flexibility to showcase certain issues in the command culture to syndicates in the maybe article 120 is likely to get conviction. If i may piggyback on that a little bit. Again, that trial and the courtmartial system is the ultimate adversarial factfinding process that we can utilize to get after, not get after, i think you look at these very close, very difficult, very serious cases and allow either a judge or a panel to look at the full range of evidence in an adversarial process to come to a finding of fact on a criminal offense. Chair bashford we jumped a ahead a little bit. We are not letting off the hook of article 32 what yet, but i think ms. Long, you what a question about this. Ms. Long i did but it was raised so ask a question. Its been raised many times this term reasonable likelihood of conviction, which im curious what the definition is that you are using. Because what the Research Tells Us and experience is this is an area where speculation typically takes over analysis. As you have rightly pointed out, when you describe your practice here, that determining a strong or weak case could be subjective and could be based on how experienced you are analyzing things. And im wondering, objectively, what is your test for determining that . Pflaum. With colonel col. Pflaum i think you hit the nail on the head, maam. It is inherently subjective and it is based on our experience in the military Justice System, what weve seen in terms of how cases are presented, how evidence has been received by the fact finder, what evidence can get into trial. But also an evaluation of the case file. Is there an overall evaluation in the case. Is there a readily available defense . Is there inconsistent statements made . Is there evidence in the trial that tends to negate deals or that cuts against a story . Again, the reasonable likelihood of conviction is, and providing that advice, the staff judge advocate, the entire case file, understanding the courtmartial process, the dynamics of the particular case. This applies in Sexual Assault, of course, but also in every case that we try, to make our best assessment. And it is a bet, its an assessment. I dont think they can be necessarily a mathematical or scientific approach to it, but our best assessment of the likelihood of success at trial. Ms. Long just following up, because you are saying with your experience in the courtroom, in your experience with your panels, and that makes me think that it could be leading to selffulfilling prophecies. We put these cases forward, our panels dont like them, and, therefore, when we were assessing regional likelihood of conviction, perhaps this isnt a case that should go forward rather than thinking ok, looking at all the available and admissible evidence, looking at the elements of the case, should a reasonable, educated jury, panel, determine someones guilt beyond a reasonable doubt, not will they be, from our experience . I dont think you meant that, but i wanted to make sure i understood what you met. What you meant. Col. Pflaum no, i will say this, my apply and i believe others apply a standard into what a reasonable factfinder would come out on the case. Ms. Long would come out or should come out . Col. Pflaum i think that is a good question. Let me thank for just a moment. [laughter] think. G you can i dont want to col. Pflaum that is a good question. Substituting my judgment for the factfinder. I think should come out. It is the error but that is not my call and also at that stage in the trial, i have not heard all of the evidence so i think it would be a bit precocious to suggest i know everything at this point. That i am providing advice to say they were wrong, they came to the wrong conclusion should they come to the conclusion. Mine. S opposite of i would agree it is, at its core, a subjective standard so it is difficult to arrive at an objective standard. It would be looking at the evidence based on your experience, what should a reasonable finder of fact the return and that would be a working workable approach to the issue. Lt. Col. King maam, when we conduct our analysis and give recommendations to the staff judge advocate, really the standard should be factual and legal to hi sustain a conviction so we are going to , rely on experience but also caselaw. Our Appellate Courts have a review that gives us the ability to look at what facts might have been reversed by the appellate , and the legal sufficiency, so when dealing with the article 120 offenses where the charging theory is incapacitated, looking at detail whether a certain Legal Standard has been met for incapacity based on the patterns you have it surrounds the incapable of center to impairment by intoxication situations where we may have a blackout involved and going to the actual case law would be a standard we should be focusing on as well. I am glad that the air force answered the question originally. The idea that is not what we used and im not saying we shouldnt. Im just saying we look at the case in a clearcut fashion and try to remain objective about what the probable cause standard means, and, again, looking to the desires of the victim, and wanting to go forward. But we do assess the credibility at thevictim in looking recommendation. If there is a victim who is contradicted by all the other evidence. We do not blindly go forward. We do assess the credibility, whether it is contradicted or not, but i do appreciate a that we have a much more clearcut standard that is it is probably all subjective but maybe it does not fall to the subjectivity for the conviction. I think it is one of those trial, as an experienced prosecutor, you are aware of what you have. I am of greek decent, found it so many times and i dont and when you see it from afar what you have, to say subjective, it is not just a laypersons perspective. They know what evidence gets the standard. The variable is how people hold up in court, an adverse ruling, making the testimony if the key witness falls apart in the last second. And an acquittal. And the reasonable likelihood that members they didnt buy the argument the government had. Should have come back with a conviction, and for some reason, they didnt buy the argument the government had. That happens. It is part of the system we we pretty muchy think we will not get a conviction, that happens in our system for sure. I dont know if that is the policy call it judgment call if by the convenience authority, and the system allows for that. Ms. Long many of you talk about evidence that is presented to the staff judge advocate after the preliminary hearing. Can you give me some examples of what type of evidence that may be . And why charges if they dont have the evidence prior to referral . Capt. Tasikas i am going to defer to my colleague, who might know more of that from my experience. One example might take a long dfe get the is theg and that Digital Forensic examination . The Digital Forensic examination that might reveal evidence. And a particular place, either inculpatory exculpatory. Another example i just had and lost it oh, witnesses the defense may find at the referral age. Stage. As the defense starts to do their investigation, they talk to witnesses they didnt find or know about in an interview and bring support statements or i witness testimony they didnt have at that time. That raises an important point. There are times when just because the case was referred to trial, not prevent alternative disposition, should the cases change in a significant way. And actually, i think this was i cant remember where it is raised in the written products, but the issue of delay in investigation to adjudication of a case, and one concern that i had as an sja, and i still have, for many of the reasons i raised, if we wait till the case is perfect, it could be too long , and by preferring, it triggers processes that help us determine the right answer on a particular case. And i agree. Age,e electronic electronic evidence is something that does take time to develop from the forensic examiners. Additional witnesses may come to light as a result of that. And just as the ebb and flow of the trial process, or the pretrial process, brings amount of evidence before that is not present. Finds a constitutional issue, a probable cause, if a pho finds no additional cost, could evidence, the sj could reverse that based on no evidence . S. Yes. In addition to digital evidence, we see mental evidence that is still pending. Examine the mental capacity at the time of trial or lack of mental responsibility, something that could be defending. During the trial itself, the defense has the ability to raise an issue, to reopen the article 32 process. I think the military justice act actually changed the landscape a little bit, which prior to that it was implemented in january this year. We dont have the ability to issue subpoenas and referral. When you look at the landscape, about how long it took before we could issue subpoenas in the case, there was so much information you got, but you only got it after the case was referred to trial. When we were talking about going out especially with social media that requires a subpoena, looking at the victims social media instagram my children say it must be instagram because facebook for old people, sorry, we are all old. Plays out, but there is lots of evidence that comes in that used to trickle in after referral. Trying to make a probable cause determination, that is not necessarily hopeful, but knowing it is out there, knowing that you can go out and see maybe not instagram but facebook, you can see what people are saying, going back and getting that provider to provide that information, that is incredibly important. And so we basically have been where we see cases this trend. We dont know what it means, but we have seen this trend where the preliminary officer finds no probable cause. The staff judge advocate says i disagree, there is probable cause. The cg refers to trial and then it ultimately ends in acquittal on the substantive offense of sex assault. I guess what we are trying to find is the why, and theres a lot of variables. A lot of you said one of the , reasons you dont want either to qualify or not qualify article 32, finding of probable because sonding is much information comes in prior to referral. You have talked about information that comes in post referral prior to trial. If you could focus on that one chunk of time, what would come in that would take a probable cause to a nonbinding likelihood referrals at trial decision . I understand things can come in post referral, defense can come forward. I dont i dont think there is anything to stop defense from coming forward prereferral but could you focus on that chunk of time in response to this . For the air force, some of the things i was saying before, if somebody goes to a social media page and does a print screen, that will not be provided to the preliminary hearing officer. Something someone posted on social media, we may be able to look at it, but it will not have the necessary parameters for the preliminary hearing officer to take a look at that and say that is something i could take a look at. It doesnt meet any of the standards, but that is something the judge advocate may be aware of. As we talked about before, we have a lot of, i think all of the services are deploying at a high rate and people are going deploying and going overseas to the extent you cannot get them back. Or they did not make a statement in a case that may have evidence if they are willing to write a letter or provide evidence, the defense counsel is able to fine them and they are able to gather that evidence, and provide that to the convening authority, but maybe not something provided to the preliminary hearing officer. All of that extrinsic evidence can be gathered up and provided to the staff judge advocate and therefore to the convening authority in making that decision. But that may or may not be something that is considered by the preliminary hearing officer based on rules and evidence that apply to that preliminary hearing. One thing to offer is under the new rules, often times 32 preliminary hearing officer doesnt have the full benefit doesnt have the full benefit because the victims testimony because the election does not participate in preliminary hearing, and that is the trial counsel assessment of the victim. Decision advocates may sway no probable cause different from article 32 but i actually also too would be curious. And i dont have the data in front of me to understand the number of cases how statistically significant the difference is in cases where there is no probable cause to where they did find probable cause and it still ended up as a result of acquittal, and that is because of the wide gulf between probable cause and beyond a reasonable doubt. In a case where there is, again, the 32 vote determination that there is not probable cause, a strong signal to everyone involved in the process this case is a difficult case and there are issues Everyone Needs to look for. Just because there is probable cause sound does not equate to a conviction that a criminal trial beyond a reasonable doubt. I would be concerned about signing that needs further study from us. Perspective. I hail from state Court Criminal defense. And we have preliminary hearings that are binding and can be overruled with legal process. By the prosecution. The concern i have with some of the things you are pointing out as problems of proof, availability at the 32, is that if it were binding, wouldnt you be inclined to be ready for and take the time if you need continuances, and be ready with that information . We have media. Thatve all kinds of things you are talking about available at the prelims, and if it was binding, that might, one, get you already, and two, influence this number of cases that you are dealing with post 32, where your angst over it is close, it is weak she should have a right, he should have a right, her day in court. Meanwhile there is a suspect having to deal with the consequences and waiting for that trial when it could have gone at the 32, is something to balance. So the question i have is would a more binding effect, if the 32, alleviate these concerns i have just described and get rid casese of these weaker where you can enter into the victim and say we dont have , anything more to over to provide to overrule that judge or magistrate . If it is another set of eyes, that doesnt help you make that decision. The decision is still in your lap. So your thoughts. That forcing the government to have its case in essence complete at the 32, i cant say that there is not value. The obvious it appears to be , common sense that the government should have its strongest cases as early as possible. I would be concerned about two is, and the first is think i will say, my concern is that may be unnecessary delay in causeg until it may unnecessary delay in waiting for 32 to the case can continue to improve through the process. There is value at least in the military Justice System allowing a case to proceed versus waiting too long versus an initial disposition. Certainly sorry. I certainly take your point, a as far as it may force the governments and as a better case to present prior to going to the 32. I think if we were going down that road, it would eliminate the staff judge advocate that has the check, he were she holds the probable cause check in his or her hands. Haver system, although we we do have qualified preliminary hearing officers serving in all of our cases, often times not as experienced, as the staff judge advocate. It might be more appropriate for the staff judge advocate to retain that role to serve for the probable cause check. To answer your question, it i will loop back around to answer your question, it, is what additional evidence convening authority is considering to sway them in that small window, and in my experience, i havent seen new evidence really being the things that might sway a authority to move forward. It is contrary analysis by the prosecution, who is working with informedo provide that decision. I have not seen many instances where there is evidence that is outstanding that comes after the article 32 that comes to sway the proceeding. That moves to your question, if it was a binding proceeding, then that process would require the convening authority to advocate that rule of making the ultimate disposition decision, and it would also cut the sjas informed decision and informed advice out of the process. So miss cannon, you have hit on probably every debate we have had internally within our office probably for the last five years. Because it is a difficult decision. We talk about binding versus nonbinding, whether it should be a military judge, and judge advocate that has lots of military Justice Experience and trying to get to the heart of that. Roomut four lawyers in a together, you will have four opinions. I think on something as important as probable cause, i that like to see cases only meet the probable cause standard. I would like to see that disposition or preliminary office in officers decision have more weight. I would like judge advocates taken into consideration and find out what is out there. New, and we6 is so are relying on the old version where there was so much information and evidence to did not get until after referral. Or that you are actively trying to get. Our 100 day standard israel. Is real. It is not a joke. We see cases [indiscernible] yes, sir. We see cases dismissed because 120 daynot read the standard and you have to start over from scratch. If you can show why the delay, but like the government is still assembling evidence, that is not sufficient. Movedea they are trying to the cases, and to get a preliminary hearing, to get an article 32 investigation, you have to prefer charges. That is the trigger. Unless the person is in pretrial confinement. You dont have fact and ability to display while you are waiting for forensic examination or for subpoenas to go out to places. There is lots of stuff that comes in you are waiting for but if you say we are not waiting for that, we cant wait to do it , thee have to get moving military judge is checking, there is a clock, and you are not showing what you are doing to move that case along, your case could go away, and it could be no kidding when. In the defensein when it should have been for the government. I understand where you are coming from. I am a threetime defense counsel. I understand the article 32 process, it is a good one. Trying to take that out. But right now the way, and it is a good way, the advocate has the benefit of knowing what is going on, who has evidence, says, and disagrees with the faux. You have to give them that benefit area there is no mechanism for them coming back and saying here is this extra evidence. By then the clock has gone to a point where that case will go away because of sweet trial. I go back to my earlier comments about the original idea when article 32 was to protect the accused from the convening authority. The idea of having an open forum with crossexamination to and being able to provide evidence, and make sure there werent baseless charges or a valid defense that wasnt going to go forward. Now we are in a moment we are trying to push something that is more civilian like, which is great. If we continue to make military Justice System more civilian like, then why do we make why do we need military Justice System . You gain something and lose something under the status of their service, active duty or the more time we have in our system, the more time we have somebody under our rules. Already now we have a system that is taking a little bit too long. From what it was originally envisioned are the more process we have, the more likely these cases will take even longer. You have accused of being in the service for a longer period of time. I would not want to have that and while these systems operate wonderfully in peacetime, they can operate armed conflict. That is a very important facet of our system that it is mobile, it is not just here in time of normalcy if you will. I think it was interesting hearing about kind of the abdication of the fda responsibility. I dont like using the word binding or nonbinding. I like looking at probable cause as a threshold it is a constitutional issue. I hope we would all agree about that, so in a way it is inherently binding or should be inherently binding because it is a basic constitutional issue. So i dont think from a comparative standpoint the 93 u. S. Attorneys nationwide feel that every time a grand jury votes to bill or nobill a case their responsibility is being abdicated and that decision is resting with, i have a pig farmer sitting on my tuesday grand jury, and we invest the pc determination in him and in the schoolteacher from erie county, and in american citizens across the country. So you know, why cant the military trust a judge advocate to make a determinative binding threshold issue on probable cause have the preliminary hearing . And i would like to tip my hat at least to the navy and the marine corps who acknowledged in their answers, if it were binding, this would afford due process to the accused. Shouldnt we be concerned about due process . That is the heart of the issue. That is really that is really the heart of the issue. It is not about changing things are taking things away, it is about making things better. Isnt that what we should be working toward . [indiscernible] the nature of probable cause standards, then they find no article 32 specification, and does that bar the convening authority from taking jp action, . That is very important. To tie the hands from all other actions, no probable cause whether it is 120 article 92 or general order, whether the person was absent from their duty or sleeping on post, that is very maybe you cant get a conviction or courtmartial, but the ability to take that person, article in our system, the 15. Preponderance of article 15 is preponderance. Reasonable doubt i think. That is a policy determination. So i would be careful, because having article 32 being jurisdictional process in the system would be problematic, and if there are defects in article 32, those are issues at issues that could be raised at appellate level and the cases overturned. I dont think it was to be that. I agree with you, we all want due process, this is military due process. It is different from constitutional due process. They go handinhand. But slightly different. I would offer there is a judge advocate that is put in this process to determine whether or not probable cause is met. A staff judge advocate and not a preliminary hearing officer. If they say there is no probable cause, the commander cannot charge. E charge. If the prillaman are hearing officer, who is author also a lawyer tethered to a bar, is licensed by a bar, why cant that opinion be determinative . I like to use the word determinative of the constitutional issue of probable cause. That is what i am getting at. Final questions and then i will delay our break for five minutes. My two questions, there has been talk about how things would abdicate the goal of the commander and making the decision. Realistically if the staff judge advocate has said there is probable cause, how often does the commander feel comfortable in saying i am not going to forward it, i am not going to refer to general courtmartial because that has to go up to the secretary . Has that ever happened where the staff judge advocate has said yes, pc, and the commander exercising his role, that is one said i am not going to refer it . That is one question, and how often are members administratively discharged after an acquittal on Sexual Assault charge . I realize they are completely unrelated. Candidly i dont know if the army has collected data on the review after a convening authoritys decision to not refer after a staff judge advocates advice to refer. Anecdotally, it is exceedingly rare. It is a check on that convening authority, exercises his discretion, understand that decision will be reviewed by a higher level. I believe it is exceedingly rare. To your second question, if you could reiterate your second question . After a full acquittal of sexual full charge, how common is it for them to be discharged . Based on our army regulations, if there is a full acquittal absent other evidence or misconduct, that would be a barrier to administrative separation for that offense. That would be rare. Ford they be separated other misconduct they commit or other again, i dont have the data for that. Answer the second question first, we have similar policies in the navy. To the first question, i am not aware of any case in which sj found probable cause and made a recommendation to go forward to trial and go to the secretary of the navy and request or not refer, thereby triggering the policy of having to go to the secretary of the navy. I agree. For the first question, it is very rare. I know it has occurred but any instance where i have seen it happen, there was additional victim preference that was provided after the article 32 process and after the actual probable cause finding was made prior to referral. There was a small time. I agree with captain monahan Service Regulations prohibit acquittals moving forward for personnel. The officers, after an acquittal, there can be cause, separation proceeding but i have not seen that occur after an acquittal for Sexual Assault. Question,o your first the recommendation is not limited to whether or not there is pc. It is pc and a recommendation of a couple of other things and a recommendation of whether or not to go forward. In the air force weve not had a convening authority. We have had staff judge advocates say there is pc, but i dont recommend you go forward for the following reason, and lay out reasons, and the convening authority did not go forward. We have not had the situation to my knowledge where they said yes pc, yes go forward. And then the convening authority said no, i am not Going Forward. We have not had to go to the secretary as of yet. Question in the , air force, an acquittal, the underlying facts that led to the acquittal cannot serve as the basis for administrative discharge. However again like the other services, if there is underlying misconduct, and i have seen subsequent misconduct, trigger an administrative discharge. I would also, and i guess this is not the era for this. If there is a conviction of any sort, any sexual offense, it automatically sort of requires a discharge from the courtmartial, but in a prior lifetime as a defense counsel, i did see convictions of sexual offense that is then did not receive a discharge but then that could not be used as a basis to trigger an other than honorable conditions discharge. They were getting a general discharge for that member. Sentiments for both questions. The question going back of policy of an acquittal goes to the article 32, and if you find no probable cause that has triggering repercussions for administrative avenues. I would envision a system, that if you find no probable cause in article 32 that is binding, that the Commanding Officer be barred from taking other administering administrative actions. But is not something i recommend. As far as your questions i echo the same thing. We have time for one staff question. I am sure there is just a short answer to this. [laughter] in practice, how do staff judge advocates [indiscernible] to convening authorities . [indiscernible] do they do poorly or sit and do read, and is there anything for Service Regulation that requires or dictates how the information of article 32 is conveyed to a convening authority . I will start with that. The 32 report in the file, i will say in a case where there is a negative article 32 officer finding, that is highlighted in my article 34 advice. So it draws the convening authoritys attention, and it depends on the case and the convening authority whether they Read Everything or whether i summarize that for the convening authority. I would agree, in the navy. It is casebycase, dependent on variables like the command and convening authority and staff judge advocate, how much the convening authority reads and how much is put forward. I would agree with my colleagues. Well that was short and , sweet. I think generally speaking in my , experience, staff judge advocates provide written advice and oral advice to the community. In my experience, it is three different authorities. They have read every article of that investigation. They had questions for me about it and why is there a difference if there is a difference in the foes advice . They are very, very cognizant of what is going before them. Very interested in making sure they make the right decision for the right reasons. And i have seen them be very thorough. I had one convening Authority Report soalved the 32 we could sit and talk about it and have questions about different testimony this is pre2014, but very aware of what is going on and interested to know why there is a difference. I would echo that. It is true. It is a dynamic process, and talking to the sgas on the field the convening authorities , are detail oriented, they have a lot of questions, not just a routine oriented exercise. So i would just suggest that it is dynamic and the give and take back and forth, and they have to feel comfortable with the decisions they are making. Thank you all very much. I am going to try to compress our break from 15 minutes to 10 minutes so we can keep staying on track eerie think you all for coming. Very nice. [captions Copyright National cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. 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