And the reasons why some victims choose to not move forward through the military justice process. This is about three hours. Okay. Thank you for joining us this morning. Were going to be looking at the perspectives of the services military Justice Division chiefs regarding conviction and acquittal rates, case adjudication process, and victim declination. [ inaudible ] [ inaudible ] does the article 32 statute and its implementing rule, rule for courtmartial 405, provide an effective check for charges against which there is no probable cause . Ill start with you. So, i think for the past several years the procedural requirements have change and statutory change for the requirement for the victim to testify. And as a result, in many cases that the governments most significant evidence. In the those cases where a victim chooses to not to testify, the government is basically making its case based on the paper file. And so i will say that those changes over time have, have reduced the procedural requirements of article 32 but i still think its a valuable check. First off, there is an experienced judge advocate looking at the case and evidence. Theres also the opportunity for the defense to present evidence at the case. And i as a former staff judge advocate have seen even in those diminished proceedings where an article 32 officer will make notes or make findings that are relevant for me to consider and highlight to the convening authority when im providing my advice on disposition. So, i think, it was built into the system for a reason. And i still think that reason exists currently. I would agree with the colonel. I would emphasize two points. First article 32 in its current form still features a neutral and detached preliminary Hearing Officer providing advice to the convening authority, the judge advocate making a recommendation as probable cause. Thats still value added. Additionally under the current rules, it does give the defense, the victim and the government the opportunity to provide matters for the sj and convening authority to consider so that were not presented at the hearing itself. Theres an additional avenue in which information thats important to the determination of probable cause to be brought to the decision maker. I agree. The article 32 still performs a valid function. One thing thats not captured in the timelines that were mentioned the 15 minute hearing. These preliminary Hearing Officers are taking hours of video interviews with victims and other witnesses or parties and sometimes even including the accused where theres an interrogation thats included. Its important when you put the 32 preliminary report into context that usually it involves an interview with the victim, a detailed interview with the victim that is usually an hour or two long that covers a number of issues. So thats just an important part thats included in the analysis of the preliminary hearing. I probably sound like a broken record because im going echo many of the sentiments. I think that a good point while the hearing itself seems somewhat abbreviated, that when you go back and look at the evidence thats being reviewed and the time spent doing that, sometimes, you know, victim interviews can be four to five hours long and they are reviewing every bit of those and they are all videotaped now because the military criminal investigating officers, investigation offices are videotaping both victim and suspect interviews. So all of that stuff is being provided and its being its being reviewed by that investigating officer. While the content of the hearing or maybe the actual hearing may be very abbreviated, i think going through that thorough investigation would take could take hours and hours. The other thing i would point out oftentimes i know the other services do this as well but in the air force particularly with Sexual Assault cases or penetrative sexual offense cases we have sitting military whys that will be the preliminary Hearing Officer. Not only neutral and depatched but very experienced military judges who have been through the military and understand the probable cause standard extremely well who are able to then make a recommendation to the 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 the adversarial intent article 32 was more of a tool for the defense. Yes, the io was there to look at the facts and evidence and make a determination. It was a discovery tool for the defense. Also the defense could put on a vvery deliberate defense, mitigation and extenuating evidence as well. Its changed again in 2019. From that standpoint the original purpose of article 32 has changed. Probable cause hearing. For those purposes alone its fine. Does it perfect the governments case. I dont think thats the intent of article 32. Its put on as what is necessary to get to pc. Talking to some sjs in the field they feel its a paper review and they do last as little as 15 minutes where they hand in the record of the investigation. So from that standpoint, i dont think its very helpful. As far as the government is concerned, it gives some notice to the defense. So while there may be some other features the other services talked about i dont want to not highlight there is some level of paper shuffle, and i dont know how much, more informed the convening authority has. Is the entire investigative file turned in, are portions of it turned in . Is there a summary of it give tone the 32 officer . So, i just talked about that yesterday, about a particular case, and it was not a an adult Sexual Assault, it was a child Sexual Assault and the government put in a limited amount of rio and the defense wanted the entire rio submitted. So i think its case by case. I speculate and i dont like to speculate but assume most of the time its the full ryo. For the air force i know that we try to focus on the actual evidence thats contained within the rio. So we would point to more of the videotapes that were done from the mcio as well as any statements that are contained by witnesses that are not present to testify. But, for us, in our special investigations their thoughts and feelings that start at the beginning of the rio that doesnt go before the investigating officer because i dont believe thats relevant. Similar response for the marine corps. In some instances you might have an rio but in some instances we may look at a complete cell phone extraction that includes every text message that the accused sent for a one year period. We wouldnt provide that entire enclosure to the investigation we would pull an excertain from it. Again for the navy case dependent. Similarly with the army. The government puts on the evidence that it believes is relevant and helpful to obtain the probable cause and there could be be other parts brought in by other party that go with the other services. But, again, the government typically starts with those key relevant pieces of evidence. So, the section 832a2 didnt b whether theres probable cause thats in the general provisions given the authority to the investigating officer, in some cases its the judge advocate, sometimes not judge advocate but judge advocate advice sometimes a military judge or magistrate. If theres a finding theres not probable cause that doesnt result in a dismissal with prejudice, does it . No. It does not. Thats, in essence, a recommendation that would go to the next level of convening thorkts whichever convening authority appointed that investigation for, there for their determination. Im sorry to the point its not binding. So thats consistent throughout the services . Thats correct. So its really not a true preliminary hearing in the sense of my federal courts or even the state courts who have omnibus hearings or preliminary hearings where if the government fails to show probable cause the neutral detached Hearing Officer if further investigation gives a new basis thats the end of the case, right . In our system that check is held at the judge advocate level. The judge advocate is the convening authority, would receive the preliminary Hearing Officers report and if he or she determined there was no probable cause that would be determinative. Is that consistent throughout the services . Thats correct, sir. Thats correct for the air force, absolutely. As well as the coast guard, yes. And the staff judge advocate, however, is in the role of the Legal Adviser to the convening authority. So staff judge advocate is not in the true sense a neutral detached as a magistrate judge would be. Because the military judicial system is a stove pipe standalone system, which their decisions and their recommendations or rulings cannot be adversely impacted on their careers, correct . Theres independence built into the system. I think, if i may, the original idea of article 32 and article 34 was to ensure there werent baseless charges that courtmartial. And im talking again pre2014. So taken together, those vehicles were to ensure, again, base cl baseless charges or maybe trivial charges that shouldnt see the inside of a courtmartial. So some of the features carried over. For example, the waiver still remains with the accused. The accused says i waive my right to article 32. That doesnt have to be accepted by the authority but they do not and not required then you dont have a pc determination for article 32. Still resides with the convening authorities and the advice of the sja. The sja can say we have jurisdiction and the theres probable cause these offenses were committed. Just to ensure the very basic aspects of a case go forward. But the other features of conviction or what form and all those kinds of things are still reasonable determination and in the discretion of the convening authority. Its just that they are different in a civilian context. So we try to make an analysis or analogize article 32 with the civilian sector. I just think its a different creature altogether, at least originally designed, now its morphed into Something Else. I dont think making a direct comparison is helpful. I would agree, and i would add a couple of points. As a 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 tried to take a good fresh eyes and look what was going on. As a staff judge advocate youre 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 discipline of the unit that youre serving. So i think a staff judge advocate and sometimes that goes awry, sometimes people get too close but the role for the staff judge advocate is to sit down and try to remain neutral and detached as well. The other part of that is i know for tariffs and the other services its always a judge advocate who does an article 32. Always a judge advocate thats 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. But thats not always possible given timelines and whats going on. The staff judge advocate is not limited to the four corners of the document presented by the preliminary Hearing Officer. As previously mentioned the defense counsel, trial counsel and sbc or lbc, the Victims Counsel can provide Additional Information to the staff judge advocate thats going to the convening authority. While the neutral and detached preliminary Hearing Officer gets evidence and 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 theres probable cause. Marine corps agrees with the position that the 32 preliminary Hearing Officers probable cause determination should not be a binding decision. Its important to look at both the Historical Context and the role of the commander 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 commander an informed decision. And thats really what this process is designed to do. The article 32 process is to help give the commander an informed decision on the evidence and then the sja also assists with that informed decision process. I think the Historical Context is important because you look at the qualifications for the actual preliminary Hearing Officer. And 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 where military judges have served as preliminary Hearing Officer, but thats not a requirement. 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 i would say there is checks in place that if convening authority or staff judge advocate demonstrate less than official interest in the case that individual can be disqualified if further participation in the case. Its 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, sir. And i will echo a lot of a lot of the prior comments that my colleagues made but the way i understood your question to start that the staff jo advocate isnt neutral and decisioned but part of the prosecution. Its true that the prosecution arm falls under the supervision of staff judge advocate. But i think the staff judge advocate is overall responsible for providing the convening authority, the advice on the military Justice System. And they have an interest and they have an obligation to advise that convening authority on those interests of discipline that might warrant prosecution, and owe as well as justice and making sure that frivolous charges or baseless charges dont go to trial. So i think the 32 informs that ultimate advice that that experience staff judge advocate provides to that convening authority in making a decision to refer a case to trial. And and, again, the the 34 advise the advice under 34 p 0 u is the sc 783834 is not just whether there is probable cause. Thats a low subjective standard of whether probable cause exists. The value and the key portion of the staff judge advocate rermgs under arm 34 is the recommendation as to disposition. And so thats where the sja is saying, yes there is i mean, if there is a finding by the staff judge advocate of no probable cause thats binding on the convening authority. The case cant proceed forward. However, its the recommendation where the sja is advises that convening Authority Based on that experience, based on the full review of the case file in terms of whats the right disposition, whether referral to Court Martial or taking some other action. Thank you. Were going to be asking questions in a little bit about whether the 32 officers finding of no probable cause should be binding. But i noted in your introductory remarks the 32 judges were the most experienced, highly trained, very experienced military, experience they have the right training, neutral in experience until we Start Talking about whether their recommends should be binding. And then maybe not so much. So my question for you, before we get to that with eis if a finding of no probable cause isnt binding and if its really kind of a paper chase at this point because i believe very few complaintants actually elect to testify at the article 32 these days, kind of whats the point . Why not just then just go straight to the staff judge advocate . He hes got access to more information, like why are we even bothering with having the very experienced people taken from other duties to look appear hours and hours of video and read through hundreds of pages of paper . Let me start with you, captain. Its a good question. I always like to go back again to why the article 32 came into existence in the first place. And it was a check of sorts against the awesome Plenary Authority of the convening authority. Because it was not necessarily open but opened the accused had a right to counsel, to crossexamine, went evidence, even lay out a defendant, constitutional defense, mitigation and affirmative defend defenses. And that was yust fog the convening authority because if if there is cason oh the margin they would want the 32 to plesh it out and maybe a case will go away if you will because there wasnt strong inclination. Now with the probable cause determination its less helpful in that regard. However, i think it does give some level of protection to the accused again on those very basic tenants of what theyre looking for, the scope of the Current Article 32. Issues of, again, is the specifics actually a crime . Is there jurisdiction . Lately retes have become an issue had whether or not those are jurisdictional issues. There is a floor again theyre looking at, the basic to ensure that a case going to the convening authority has the basic notions of jurisdictional and other substantive issues before any o forward with a crime. I dont think its there again to perfect a case for the government or for prosecution. Bit its just i think a very narrow protection again for the accused. In that regard its helpful. If we are thinks as more broad and expansive i would argue going back to the pree 2014 article 32, which was very informative for both the defense and prosecution and convening authority. So the i believe that the preliminary Hearing Officer does provide fresh eyes on a case. I think neck take a look at the form of the charges. They can recommend particularly in penetrative sexual offenses, the greater offense whether or not there is sufficient force, winter there is not force, whether it should be a lesser offense. And i do believe that its providing the defense a forum to provide evidence. I think that is the unique aspect of an article 32, the defense has 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 who is actually making that recommendation. So i do believe it still has a value to our system. I will agree, however, that we 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 changes 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 course of that time frame. And so having someone with fresh eyes look at it and make sure you are looking at the right charge time frame for that particulater las vegas of article 120 is important to look at. Yes, maam, i agree. It does 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 at this process. And focusing back on the informed stigs for the commander and providing the commander with louisiana informed decision, the article 32 also provides the staff judge advocate with a more informed decision. It produce provides a forum for the accused to present challenges to a particular charging theory in there are charges. The accused may not actually 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 improvements procedurally in our written comments. We mentioned that that the ideal scenario would be to have a. Military judge serving as a preliminary Hearing Officer. We have not advocated for that military judges recommendation to be binding. But in certain cases in the marine corps where there is a complex charging theory, or if we are looking at offenses involving murder allegations, or law of Armed Conflict complex amicuses we have brought in military judges to serve as the preliminary Hearing Officer. In those instances we feel the skparnd li commander and staff judge advocate have the most informed decision prior to referral. So i believe that the system benefits in every in every case in which there is article 32 and the defense and government can depending on the facts of the case derive a benefit from an article 32 in the current iteration. With regard to the system, the current iteration of article 32 provides opportunity for qualified judge advocate to conduct a deep dive into the facts presented at the article 32 preliminary hearing to chew it was commonly submitted several hours of investigative video, recorded interviews with alleged victims, witnesses and sometimes the accused. And that provides the preliminary Hearing Officer a toep prepare a comprehensive charging analysis for the benefit of the convening authority. If a case is particularly weak, whether or not the whether or not the foes recommendation of no probable cause is ultimately dopted by the convening authority. The defendant can gain a benefit from the comprehensive analysis because a well written article 32 foes report can provide a road map to acquittal as a contested trial. Because it points out the flaws in the governments case which a savvy defense koum can use to his or her advantage. But in a particular strong case i would argue that the government can use a well minimum ewritten f. O. E. Report to its benefit because it incentivize a guilty plea if the guilty plea is warranted under the facts because the defense will see from a qualified neutral and detached judge advocate lie laying out why the case is so vonk against the client. I do see even unthe current iteration the article tp provides benefits to the parties and most importantly to the system. So im actually going to start by disagrees with the marines on just one minor point. At my peril, i believe. But just op the fact that whether you should have judges. A formal requirement for judges on 32s if that rule was taken from that statement. And i think that is of value. And ive sienna for example in perhaps a capital case oh or something on those lines. But as a matter of practice i disagree with that mainly have a logistics experience but just also a logistics issue but also i dont think its necessary. I think that at least in my experience we have ewe had officers in the rank the major who wery judge advocates performing the f. O. E. Role. I think did he they did a marvellous job. And what they were designed to get after. But i agree with my colleagues its still of value on a number of different lechl lechls. The first is for me as a staff judge advocate i sbcht benefitted from a formal process by which the government presented its case, the defense had an opportunity to present its evidence and that was given to me in a report i could utilize in advising the convening authority. Its way too early in the f. O. E. Prosecution process to be required to be binding. There is a lot of work that can be done, that captain monahan and referred to in his statement after the 32. The case isnt complete at that point. And, sir, you made the point that at the 32 if it were binding it could be dismissed with prejudice and the government could come back and try again. In the military process that requires going back to the referral process in cases which could add time and delay. Whereas as captain monahan, the government or defense can take the 32 and fix issues in the case and fix their case as it proceeds forward, as long as there is probable cause and the recommendation it is it to dispose of the case by general Court Martial. I do believe there was value. There was value to me in a formal process having the neutral appear detached judge vokt look at both sides, have the prosecutors bring their case to outside party for evaluation and getting that getting that analysis by that officer. So, several of you have lamented that while clearly there is value in this process, the process has changed. Its not what it used to be. So we have heard a couple of suggestions about what you would like to see different. But from all of you can you talk to us a little bit about recommendations to the 32 process that you would each like to see the make the process more money meaningful . We can start with whomever. I can start. And i think that one shall did dsh one issue might be to broaden the powers of the article 32 officer to seek evidence that he believes or he or she believes it missing in the case. I would start with that. At the risk of being unresponsive, i would say i would remine the committee that we are living in a time of great change in the military Justice System, january 1st we instituted the military justice of act of 2016 widely described as the most Sweeping Change in the past 50 years to the ecmj. I would be a voice of restraint as far as further change to the system to allow the years and recent decade or so of changes to the system play out to gat gather data daft data before we make further change to the system. But of course i would not be opposed to relatively minor changes at the marjingen but im a voice for restraint. So our 25 charges to article 120 i respect the mission process. In all seriousness though, i would respectfully counsel caution to further radical change to the system. Because every change of significance has second and Third Order Effects that well meaning people may not anticipate. And so thats all heim saying, zblier now how about the army recommendation to go back to the days when the ie had the responsibility to go ferret out whatever the ie or the h. P. H. Had the Legal Authority to ferret out whatever evidence the m. H. O. Thought they needed to write the report, instead of today having to beg the trial counsel to provide them the Additional Information . That doesnt seem like a major change. I would tend to fwree with you, zblier i didnt plan that to be an un i didnt find it unresponsive. Its hard to believe youre a captain. Thats all. At the risk of agitating colonel pflaum, gwen. I apologize, sir. I recommendation on the military judge is certainly one requiring study and analysis logistically to see if it would be possible. Were a Smaller Service and have fewer cases to work with. So that is one that i think could use some analysis if that would even be feasible. But some of the things on the margin for the 32 that i think we could improve or continue to improve are the capabilities to conduct remote proceedings, improved technology in our courtrooms that we could have the article 32s to perhaps open up the call witnesses remotely that may not want to trial for a 32. Thats one area that i think that we can improve the process. And it has gotten much better to hold the remote proceedings. But it also i think can be improved in certain circumstances. So, again, im just echoing a lot of comments. But i would like to point out that the current. That the we have is a floor, not a ceiling. And so i think that i think its incouple the bent upon service foss push down to young trial counsel presenting evidence that is doesnt have to just barely meet the probable cause standard. And thats one of the things that we are constantly training our young judge advocates is again its a floor. You are building your case for probable cause. The government in and of itself we should be transparent, pushing evidence out there. And and just because the the victim in a case can elect not to testify doesnt mean that there isnt buckets of evidence that either corroborate or doesnt that that version of events. And so to the extent that i dont know that perhaps changes on the margin and i definitely agree broadening the powers to seek evidence. Because there is a lot of stuff to include digital out there that would be nice to be able to reap. 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 or just because you have barely met the probable cause standard doesnt mean thats what this hearing was intended to do. And there is 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 internal making the requirements. I dont know that we need changes to to the ucmjp but i think internally our services really should be pushing down information thats saying look you need to do be better, adding more evidence. Just because its a floor doesnt mean you need to just barely clear that. You need to add what would be helpful to the convening authority to make that informed decision. I think its a good question. Ill just add that i dont want to imemboli that people are lamenting with about the currently article 32. I think it depends where you stitt, stand kind of adage. If you are perhaps a trial counselor sja, you find it very valuable. But there was a policy determination a few years ago to change the article 32 to take the equities of a victim in play. And allow her to stay into the system or see the case go to Court Martial because of the perceived notion of article 32 as it was currently constituted. Back then anyway. There is in perfect fix. I think what you do is you know there is pluses and minuses in every system you have to know what you are losing by changing and what you gain by changing. There is no of course i think system. You know, gwen, talking historically, when the military first brought in lawyers im sure convening authorities and Commanding Officers werent happy with that. And a few years ago when the svc were brought in a lot of people werent happy with that. But now theyre part of the system, the culture of the military Justice System. And they are facilitating a party objective if you will. I won suggest that we change article 32 just for changing it for lawyers for convening authorities. I think and one last mountain, i think going back to prior to 40u, convening authorities would take the tough cases of article 32 to flesh them out so they dont to go to Court Martial if they are weak cases. Now you are seeing more cases go to Court Martial and maybe get a higher acquittal rate. Thats the alt of how it is. If youre willing to live with that i think article 32 is okay. If you want article 32 more robust so you dont have to go to Court Martial then the old system was probably better. I want say better. I would say its different rubio right. Thats how i would look at it. The miss peters we are gfg offing going to move to section two. If we have time. We have a lot to cover with this panel. Next concerns the referral process. The air force response to military Justice Division says that when a victim wants to participate in a Court Martial and the standard of probable cause is met, the case will typically be referred to commers to allow the victim to his or her day in court. How does this approach incorporate the nonbinding disposition guidance factors such as whether the admissible evidence will likely be sufficient to obtain and sustain a conviction in a trial by Court Martial . And if i would request i think this question is designed to have the air force respond. And then the otherers eother fss is weigh in on the weight they give for the factor, the ability to obtain and sustain a conviction at referral. Thank you. I know the air force is the outliar on this, because we look at the probable cause standard and the referral standard and take into consideration the the wants of of the victim. And when we evaluate whether or not that probable cause standard has been met and we have a cooperating victim we choose toth forward. I know that is not necessarily, excuse me, what every other service does. And i respect that they have the right 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 were Going Forward on that case. Evidence is accumulated. We are gathering information. And we are going out and again as i mentioned before, you should be corroborating every fact of consequence that you can, that the victim asserts in her testimony. And in youre doing that you can get convictions in cases that you didnt previously think that you didnt previously think that were a slam dunk or take into consideration that there was 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 the probable cause standard allows us to go forward in that case and give 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. Well go through and see what the rest of the services say. So i would like to think that our service is different but i would suggest that pewaush dsh did the coast guard prbl has a similar mindset with convening authorities. If you have a victim willing to participate and loo would like the case to go tor Court Martial, that is a huge ingredient in the convening authoritys Decision Making process. And then the conviction dsh 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 second guessed if they send a case to Court Martial. They will be if they dont, especially if you have a willing participant in a Court Martial days are case. There is a little bit of friction there that you cannot deny. And if you look at this objectively. I think some outside observers may view that as problematic. Now they get a fair trial. And thats what theyre entitled to. So in that regard its a fair process. But there is certain factors in there that i think are maybe different in these type of cases than in others. You know, i agree with the coast guards perspective, that the dsh the strength of the evidence is certainly a factor, an important factor. And i would say that the victim preference and the strength of the evidence in a sex assault case are probably the two most difficult factors to weigh, considering the other appendix 2. 1 factors. In a sex assault case kind of lean towards moving forward to Court Martial such as seriousness of offense would lean towards moving to Court Martial. And i also agree with the captain that in most cases similar to the air force. In in those cases the victim wants to move forward and the evidence, you know, may not certainly result in a conviction, were going to lean towards moving forward to a Court Martial. And a lot of that centers around the fact that determining the likelihood of a conviction is just so difficult at that stage of trial whoa you havent seen sworn testimony at that point from any of the witnesses or the victim. And were 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 that this is going to result in an acquittal. But in sex assault cases that situation is rare. Its very rare. We find ourselves in a similar situation where wrote were going to move forward in most inssss where we have a victim that wants to participate. So i believe that the likelihood of conviction or the likelihood that there is evidence supporting conviction, which is a factor in the article 33 mandated, nonbinding guidelines is an important consideration for the convening authorities when timothy bring cases forward. Because as the system of justice, we should take hard cases to trial, cases that may not its not clear if a conviction will be obtained or not. We should take those ard 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 in the vast majority of cases its not advise lk to take those cases to trial. And if we do take those cases to trial that have a very low probability of success, then i believe that if they inevitably result in acquittals there is no gain for the system. I believe the navys vlc program and their responses indicated that although all victims are different their vlc or svcs in the speeld universally said most victims feel a negative emotional effect after a full acquittal, which is intuitively obvious, right. But then you look at the accused. And i believe our defense counsel, Assistance Program representative might testify that many accused who are found not guilty of Sexual Assault offense will leave the service because they feel the service has thirnd back on them through the process. And then from a systemic standpoint, i also believe that its inadvisable to take cases with a low probability of success to trial because those that case may consume vital resources that might be otherwise dedicated to cases that have a stronger chance for success. So thats those are my thoughts on the matter. So to start, first off from the armys perspective, i would not characterize it as a policy or an z advised best practice in the army that if there is probable cause and the victim wants to go forward that we go forward as a matter of course. Victim preference is of course a key consideration and listed in the nonbinding disposition guidance. And its a factor that weighs on sjas in advising the convening authorities and its important to convening authorities because there in the interests of justice the 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 determination whether to take a case to trial. Of course, the availability of admissible evidence to obtainen and o and sustain a can conviction. That is it is did there is no mathematical formula that i used or that im aware of or sjas use to say victim preference is 65 , et cetera. Its all provided in the package thats advised brought to the convening authority to make a disposition decision on the case. But the disposition, the decision to refer a case to trial is based on probable cause. And as we have articulated i think throughout there is other evidence that is obtain. There are other investigative efforts that continue to take place as the case is approaching trial. And one of those is input from the defense. And thats one factor that as this process is proceeding the defense does have a say in an adversarial process. And 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 that affects conviction rates. Appear so at the referral decision there is a need to consider all of the criteria in advising. But to just make a disposition decision solely well to make a disposition decision there is a lot that can change after that initial disposition decision. And i would be loathe to advise a convening authority in a case where a victim wants to participate and the evidence is oips strong to not go forward, because there is also a risk of criticism as easily there could be sleazed talking about conviction rates there could be slides up there talking about nondisposition rates. To where a commander has elected to choose an alternative disposition or to not try a case that someone else thought was otherwise meritorious. I think we both want to add something. I wanted to add one of the things that we are seeing routinely these days is that the the special Victims Counsel and the area defense counselor the defense counsel in the case begin talking and discussing alternative depositions that would not otherwise happen if we werent referring cases to trial. So i do think that we have a high incidence of a zmarj in lieu of Court Martial we have a high incidence of ideas of how the victims and the accused can both be satisfied with the process. Pu that only could comes after referral. And i think thats an important factor. Im not saying the air force does it peskly to get to that. The idea is that were going to trial. I think the reality is is that there are alternate dispositions that are available that are sometimes used and utilized based upon that decision it to go forward in the case. If i can add, the system is designed again for a military context. So while we talk about reasonable likelihood of conviction and then low probability of decision those are easy calls and there is ambiguity in there. And we have a probable cause standard. So i would envision a convening authority under probable cause to send a case of Sexual Assault to a Court Martial because, for example you have a very senior officer or kpanding officer who is having an affair with a married subordinate for example and there my be issue was favorism. Fraternization. And if the person wants to break it off there is a coercive nature because of the rank differential. You extent it to the Court Martial with because you have the fraternization and adultery. Thats why you have the probable cause asked standard for the you may not get the kchgs because its somewhere between low probability and reasonable likelihood. You may there is always the possibility but the problem is those types of cases is where the military justice context it different than civilian connext sending cases to trial. Those are the type of cases that the system is it designed to ensure Commanding Officers and convening authorities have the ability to showcase certain issues in the command culture. Sending a case even though it may be the article 120 not likely to get a conviction. If i may piggyback on that a little bit, again, the trial and the the Court Martial system is the ultimate adversarial factfinding process that we can utilize to get after not get after to look at these very close, very difficult, very serious cases. And allow either a judge for a panel to look at the full range of evidence in ans adversarial process to come to a finding of fact on a criminal offense. We jumped ahead a little more we planned were not letting you off the hook on article 32 quite yet. But i think miss long you had a question about in section. I did. But it was raised im asking the question if you think its beyond the scope, i can keep it because its been raised many times this terms, reasonable likelihood of conviction, which im curious what the what the definition is that youre using, because what the Research Tells Us and experience is that this is an area where speculation typically takes over analysis. And as you sort of rightly pointed out, when you describe your practice here, that determining a strong or weak case is could be subjective and can be based on how experienced you are at analyzing things. Im wondering objectively what is the test for determining ha . Starting with colonel pflaum. I think you hit the nail on the head, maam. Its inherently subjective. And it is based on our experience within the military Justice System, what we have seen in terms of how tastes are presented, how evidence has been has been received by the fact finder, what evidence can get in to trial. But also an eechlgs of the case file. Is there an overall eechlgs of the case . Is there a readily available defense . Is there consistent statements made . Is there evidence in the trial that tends to negate guilt or cuts against a story. The reasonable limed of conviction is the staff judge advocate is looking at the entire case file, understanding the Court Martial process, the dynamics of the particular case this applies in Sexual Assault of course but also in every case we try, to make our best assessment. And thas. Its an assessment. I dont think that there can be necessarily a mathematical or scientific approach to it but our best assessment of the likelihood of success at trial. And just in following up, because you i is a with your experience in the courtroom and your experience with your panels, and that that makes me think it could be leading to selffulfilling prophecies process. Put the cases forward. Our panels dont like them. Therefore when we assess reasonable likelihood of conviction perhaps this isnt a case that should go forward rather than thinking, okay, looking at all the available elements, looking at the elements of the case, should a reasonable, educated jury, panel, determine someones guilt beyond aable reasonable doubt. Not will they based on experience . I dont think you meant that but president i wanted toic ma sure i understood what you meant. I understand. No, i think it again we are applying rather than this specific judge or this specific panel, we are replying i will say this. I have applied and i believe others apply a standard of, you know, sort of what a reasonable fact finder would reasonable finder would come out. Would come out or should come out . I think thats a good question. Let me think for just a moment. But. You can think no i mean i think thats a tough question, right because now im substituting my judgment for the fact finder but i think i think should come out is fair. But, again, thats 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 precocious a bit to suggest that i know everything at this point that im provided dwis they were wrong they came to the wrong conclusion. Should they come to a conclusion opposite of mine. Thank you. And i would agree. It is and at its core a subjective standard its difficult to arrive at the objective standard. I would agree a workable objective standard would be looking at the evidence based on your experience what should a reasonable finder of fact return a verdict of . And i think that would be a working a workable approach to the issue. Maam, i think when we conduct our analysis and give recommendations to the staff judge advocate or when the staff judge advocate gives the recommendation to the veepg authority, really the standard should be factual and legal sufficiency to obtain and sustain kwsks. Yes we rely on experience but also going to look at the appellate case law. Our Appellate Courts do have a factual sufficiency review gichg us alkt to look at what facts might have been reversed by the Appellate Court and then of course the legal sufficiency. When you deal with some of the article 120 offenses that or are where the charging in her is incommittees, looking in detail at whether or not a certain legal stad has been med met for incapacity based on the fact patterns you have and this surrounds a lot of the some of the inkpapable of consent due to impairment been intoxication anis kass where you have a blackout involved and going to the case law to review the factual and legal sufficiency would be a standard that were that we should be focusing on as well. Im probably glood that the affairs now just, you know, answered the question originally the way that we answered. And so the idea of reasonable likelihood thats not what we use. And im not saying that we shouldnt. Im just saying i think we we look at the case in a much more clear cut fashion and try to remain objective about what the probable cause standard means and, again, looking to, you know, the desires of the victim and their and wanting to go forward. By do assess the credibility of the victim when making the recommendation. If there is a victim that is wholly you know contradicted by all the other evidence in the case i mean were not blind to that. We dont just blindly follow the victim wants to go forward. We assess the credibility of the victim and whether or not the victim is supported or contradicted by other evidence in the case. But i do appreciate that were we have a much more clear cut standard that may be not as probably as its all subjective but maybe not as falls to the subjectivity that reasonable likelihood of conviction is. I just think its one of the things if you are a experienced trial counsel prosecutor youre aware of what you have. You know im from greek dissent my nom mom knows when something done is because she has done it so many times. You can did he did he when you see when you say its subjective its not just lay person perspective they know the cases and aware of what evidence they have to get to the reasonable doubt standard. The variable is how people hold up in court. Maybe you get adverse ruling. Maybe the testimony of your key witness falls apart at the last second. Those are realities. If you are surprised or from afar like where i am in policy in headquarters i can almost project the one that is have acquittal. There are some cases where im like thats a good kwas case thats getting conviction and something happens in court and youre surprised by those. Those are the reasonable likelihood that you think the the member should have come back with conviction 50 50. For some reason they didnt buy the argument the government had. This is that happens. Thats part of the system we have. But to say we doesnt dee up cases we know were not getting conviction i think that happens in the system for sure. And i dont know thats just a policy call and a judgment call by the convening authority and the system allows for that. So. Many of you talked about other evidence thats presented to the staff judge advocate after the preliminary hearing. My question is, could you give us some concrete examples of what type of evidence that might be and why prefer charges if you dont have that evidence prior to prefrl . Actually im going to defer to my colleagues they might know more of that than i do from where i am in my experience. One example might be d. F. E. It might take a long time to get d. F. E. Thats a Digital Forensic examination. Digital forensic examination that might reveal evidence. There may be a discovery request at trial to tell the government to look in a particular place for evidence and we look there and find some etched, either inculpatory or exculpatory. And another example i just had and now lost it but oh, witness that is did o the defense may find that the government didnt have at the prefer alstage. As the defense does their investigation they talk to witnesses that perhaps the government either didnt find, didnt know about, didnt interview. And bring forward either sworn statements or eye witness testimony that they didnt have at that time. And so i think thats that raises an important point. There are times where just because a case was referred to trial does not prevent alternative disposition down the line should the case change in a significant way. And actually i think this is raised i cant remember where its 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 still have in our system for many of the reasons that colonel pitvorec raised. Is if we wait until the case is perfect at prefrl, it can be perhaps too long. And preferring it triggers processes that help us determine the right answer on a particular case. And i agree in the electronic age, electronic evidence is something that does take time to develop due to the demands on forensic examiners. Additional witnesses may come to light as a result of that. And just the ebb and flow of the preet process usually brings at least some amount of evidence to the forenot present at the time of prefrl. Could that be a reason that if a p. H. O. Determines what i consider a threshold constitutional issue of probable cause, if a p. H. O. Finds no probable cause, could that be possibly be in additional evidence could be the sj. A could reremembers no p. C. Decision based on the ash evidence . Yes, certainly. In addition to the digital evidence ive also seen evidence of Mental Health of the accused be something thats still a matter pending at the 32 process. So rcm 706 proceeding to examine the accused mental capacity at the time of trite or lack of mental responsibility could be something pending. I think what one Important Note during the trial itself the defense does have the ability to raise an issue to reopen the article 32 process. I think mja the military justice act of 2016 actually change the landscape a little bit. Prior to that, which just obviously we talked about earlier was kmemt implemented in january of this year, trial counsel didnt have the obltability o ability to issue subpoenas until referral when you look at the landscape about how long is took before wektd issue subpoenas in case, there was so much information that you got but you only got it after the case was referred to trial. And so when were talking about going out especially with social media that requires a subpoena if you are looking at the victims social media account, my children tell me its not facebook that it has to be instagram because facebook is for old people im sorry if you are on facebook. Were all old. But the insanity the gram accounts those owned you have to reach out we were limited to waiting until referral of the case. So there is really no way to quote unquote perfect a case prior to referral because you didnt have subpoena power. Mja 16 changed that landscape. But we dont know yet exactly what that looks like because all of those things have not yet been complemented so were waiting to see how it plays out. But there is lots of evidence that kind of comes in that used to trickle in basically after referral. Obviously would would when trying to make a probable cause determination thats not necessarily helpful. But knowing that its out there, knowing that those you know, you can go out and see maybe not on instagram but on facebook if you could see the posting see what people are saying. Its just going back and getting that provider to provide that information, thats incredibly important. And so we basically have been reviewing cases at least the case review working group where we see this trend. And again we dont know what it means. But we have seen a trend where the preliminary Hearing Officer finds no probable cause. The staff judge advocate says, i disagree, there is probable cause. The c gflt refers to trial and ultimately ends in acquittal on the substantiatesive offense of sex assault. So were what were really trying to find is the why behind there. And there are alt of variables. Because a lot of you said one of the reasons you dont want the either highly qualified or not so qualified article 32 judge finding of no probable cause be binding is because so much information comes in prior to referral. You have talked about information coming in post referral, developed at trial. If you can just focus on the one chunk of time, what would what would come in that would take a no probable cause to a probable cause, nonbinding likelihood of success at trial referral decision . I understand things can come in post referral, defense can come forward. I dont think there is anything anything stopping defense from coming forward prereferral either. But could you just focus on that chunk of time in response to the question. For the air force as some of the things as i said before, the social media, if somebody goes to a social media page and does a print screen, thats not going to be provided to the preliminary Hearing Officer. So something that somebody may have posted on social media we may be able to look at it but that thats not going to have the necessary parameter for the preliminary officer to say yes i can consider that. It doesnt meet the standards. But thats something that a staff judge advocate may be aware of. There are Different Things throughout social media, different informations, witnesses that were not available. Again as we talked about before, we have a lot of we i think all the services are still deploying at a high rate appear people deploy and go overseas to the extent you cant get them become or if they didnt makes a statement in the case or have evidence in if they write ha remember if the trial counselor defense counsel is able to find them and they can gather the evidence any provide that to the convening authority but that i that may not be considered by the preliminary Hearing Officer. So you will a of that kind of extrinsic evidence, if you will 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 could be considered by the preliminary Hearing Officer based on whatever the rules of evidence that apply to the preliminary. Yeah, i just want thing to offer, is that at least under the new rules the often times the 32 preliminary Hearing Officer doesnt have the full benefit of the victims testimony because of the election to not participate in a preliminary hearing. And that is the trial counsel, the may weigh in the decision. The judge advocate decision and may sway within on probable cause different from the article 32 officer. But i i actually, also, too, would be curious i dont have the data in frop of me to understand the number of cases you know, how how statistically different it is in the cases where they found no probable cause to where any did and as a result ended up in acquittal. Thats because of the wide gulf differing between probable cause and beyond a reasonable doubt. Even in a case where there is, gep, the 32 f. O. E. s determination that there is not probable cause is a strong signal to everybody everyone in the process that there is this this is a difficult case and there are issues Everyone Needs to look for. But just because there is probable cause found does not equate to conviction at criminal trial because of the beyond a reasonable doubt standard. I would be concerned about you know assigning any that needs further study from my perspective. I i hail from state court, criminal defense. And we have preliminary hearings that are binding. And can be overruled are Legal Process by the prosecution. The concern i have with some of the things that youre pointing out as problems of proof availability at the 32 is that if it were binding, wouldnt you be inclined to be ready and take the time if you need continuances and be ready with that information . We have media. We have all kinds of things that youre talking about available at the prelim. And if it was binding that might, one, get you all ready, and two, influence this number of cases that youre dealing with post32 where your angst over its close, its weak, she should have a right or he should have a right to have his day in court or her day in court, meanwhile there is a suspect thats 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 at the 32 alleviate some of these concerns as ive just described . And get rid of some of these weaker cases where you can turn to the victim and say, you know, we dont have anything more to provide to overrule that judges or magistrate because if its just another set of is that doesnt ep High Pressure you make that decision. The decision is still in your lap. So your thoughts. I think that forcing the the government to have its case in essence complete at the 32, i think dsh i cant say that there is not value in that, right. I mean, the obvious it appears to be common sense that the government should have its strongest case as early as possible. I am would be concern about two things. And the first is, is well let me just i think ill say my concern is that that may be unnecessary delay in waiting until the it may cause unnecessary dpla in waitidelay waiting for the 32 the case can continue to improve as it works through the process. There is a value at least in the military Justice System of allowing a case to proceed versus waiting too long before initial disposition. So i certainly takes your sorry. Im sorry. I certainly take your point as far as it may force the governments hand to have a better case to present prior to going to the 32. But i think if we were going down that road, it would negate the role of the staff judge advocate who currently possess the check he sore she holds the probable cause check in his or her hands. And in our system although we have we do have qualified preliminary Hearing Officers serving in all our cases, often times they are not as experienced as the staff judge advocate it might be more appropriate for the staff judge advocate to retain the role to serve as the probable cause check. Maam, ill loop back around to answer your question. Ill loop back to ask to the previous question. What additional evidence is a convening authority considering to sway them in that small window . And in my experience i havent seen new evidence really being the thing that might sway a convening authority to move forward. Its contrary analysis. Contrary analysis by the prosecution who is working with the sj. A to provide that informed decision. So i i havent seen many instances where there is evidence that is outstanding that comes in after the article 32 that serves to the sway the proceeding. That moves over to the question, maam, that really maam that really, if it was a binding proceeding, then that process would require the convening authority to abdicate that role of making the ultimate disposition decision, and it would also cut the sjas informed decision and informed advice out of the process. So ms. Cannon, you really have hit on probably every debate that we have had internally within our office, probably for the last five years because this is it is a difficult decision. I mean, we talk about binding versus nonbinding, whether or not it should be a military judge, whether it should be just an experienced judge advocate that has, you know, lots of military Justice Experience and trying to get to the heart of that. As many of you know you put, you know, four lawyers in a room together, youre going to have four different opinions, and so but i think on something as important as probable cause, i mean, i would like to see cases that only meet the probable cause standard. I would like to see that disposition or that the preliminary Hearing Office disposition have more weight. What i would really like to see is that staff judge advocate then take into consideration and try to figure out really whats out there. I think mj 16 is just so new right now, and were still relying on the old version where there was just so much information and so much evidence that you didnt get until after referral or that you were actively trying to get but our 120day standard is real. It is not a joke. We see cases dismissed 120 days means speedy trial . Yes, sir, yes, sir, my apologies. We see cases all the time dismissed because you didnt meet the 120day standard, and then you have to start over from scratch or the case goes away. Generally speaking, if you can show why the delay, but just pure like oh, the government was still assembling its evidence, thats not sufficient. So the idea that theyre trying to move the cases and to get a preliminary hearing, to get an article 32 investigation, you have to have preferred charges, and preferring charges is the trigger unless the persons in pretrial confinement, and sometimes they are. So youre moving fast, and you dont have the ability to delay beyond while youre waiting for a forensic examination of a cell phone or for subpoenas to go out to various places that you havent yet received. So theres lots of stuff that comes in that you are waiting for, but if you say were not waiting for that. We cant wait to do a 32, we have to get moving because the military judge is checking. Theres a tick, tick, tick on that clock, and if youre not showing what youre doing to further that case along, it is in all likely had your caihood go away. It could be a no kidding win for the defense in a case that should have been a win for the government. I do understand where youre coming from. Im a threetime defense counsel. I understand that, you know, the article 32 process i think is a good one in trying to mete that out, but right now the way and i do think that its a good way of the staff judge advocate who has the benefit of knowing whats going on, who has maybe additional evidence says and again, just disagrees with the foe, i think you have to give them that benefit, and there really is no mechanism right now for then coming back in and saying, oh, well, heres all this extra evidence because by then the clock has ticked to a point where that case is going to go away because of speedy trial. You know, i go back to my earlier comments about the original idea of an article 32 was to protect the accused from the convening authority, and so the idea of having an open forum with cross examination and be able to provide evidence, make sure there wasnt baseless charges that were going to go forward or a valid defense that wasnt going to go forward. Now were in this moment, were trying to push Something Else thats more civilian like, which is great, and the question i have then is you know, if we continue to make the military Justice System more civilian like, why do we need a military Justice System. So again, if you gain something, you lose something. Under our system, jurisdiction over the accused is status of their service, active duty. So the more time we have in our system, the more time we have somebody under our laws so i think already now we have a system thats taking a little bit too long under what it was originally envisioned, and the more process we have the more likely these cases are going to take even longer. You have an accused whos going to be in service for a longer period of time. I would not want to have that. The other idea again is while these systems operate wonderfully in peacetime, we industrial to envision a system that can operate in Armed Conflict and foreign avenues, and so that is a very important facet of our system, that its mobile. Its not just here in time of normalcy if you will. I think it was interesting hearing about kind of like the abdication of the sjas responsibility, if i dont like using the word binding or nonbinding, i like looking at probable cause as a threshold its a constitutional issue, i would hope we would all agree about that. And so in a way its inherently binding or it should be inherently binding because its a basic constitutional issue. So i dont think from a comparative standpoint that the 93 u. S. Attorneys, you know, nationwide feel that every time a grand jury votes to bill or no bill a case, their responsibility is being abdicated, and that decision is resting with i meean i have pig farmer from Chautauqua County sitting on my tuesday grand jury, and we vest the pc determination in him and in the School Teacher from erie county, and in american citizens all across the country. So you know, why cant the military trust a judge advocate to make a determnative binding threshold issue on probable cause at the preliminary hearing, and i would like to tip my hat to at least the navy and the marine corps who acknowledged in their answers that if it were binding, this would afford due process protections to the accused and shouldnt we all be concerned about due process . I mean, i think that thats really, you know, the heart of the issue when it comes to this. Its not about changing things, or taking things away. Its really about making things better. Isnt that what we should all be working toward . I think the issue, again, is the nature of the probable cause standard in article 32 is the foe finds no article 32 for specification, and now does that bar the convening authority from taking njp action, administrative action . Thats very important, i think, like to tie the hands of the convening authority from all other action because theres no probable cause, whether its a 120 or article 92 lawful general order, whether the person was absent from their duty or sleeping on post. Thats a very important facet, so maybe you cant get a conviction or courtmartial, but i still wanted the ability to take that article 15. In our system its prepondera e preponderance, article 15 is preponderance. For other services its reasonable doubt, i think. Thats a policy determination, and again, so i would be i would be careful because having the article 32 be jurisdictional process in our system would be problematic, and if there are defects in article 32, those are issues that could be raised at appellate level and a case is overturned i think the nature of the article 32 was not envisioned to be Something Like that. I agree with you that the we all want due process, but this is military due process. This is different than constitutional due process. So there is they go hand in hand, but its slightly different. And i would just offer, maam, that there is a judge advocate that is put in this process to determine whether or not probable cause is met. Its just its the staff judge advocate and not the preliminary Hearing Officer. If the staff judge advocate says theres no probable cause, then the commiter cannot refer the charge. Right, and im just speaking about if the preliminary Hearing Officer whos also a lawyer tethered to a bar who took is licensed by a bar, i mean, why cannot why cant that opinion be determinetive, i like to use the word determineative of the constitutional issue of probable cause. Thats really only what im getting at. Yes, maam. I have two final questions, and then im going to delay our break for five minutes if the staff has anything. My two questions are, again, theres been talking about how things would abdicate the role of the commander ain making the decision. But realistically if the staff judge advocate has said there is probable cause, how often does the commander feel comfortable in saying im not going to forward it . Im not going to refer this to a general courtmartial because if my understanding is correct, that has to go up to the secretary. Has that ever happened that you know of where the staff judge advocate has said yes, pc, and the commander in exercising his role has said but hooim not go to refer it. Thats one question, and second is how often are members administratively discharged after an acquittal on a Sexual Assault charge . Start with you. I realize theyre completely unrelated but. And candidly i dont know if the army has collected data on the secretary of the army review after a convening authoritys decision to not refer after a staff judge advocate ice advice to refer. Anecdotally i believe it is exceedingly rare because it is a check on that convening authoritys exercise of his discretion to understand that that decision will be reviewed by a higher level. So i do believe that its exceedingly rare. And to your second question, maam, if you could reiterate your second question. After a full acquittal of a Sexual Assault charge, how common is it for the member to be administratively discharged from the service . And again, based on our army regulations, if there is a full acquittal absent other evidence or other misconduct, that would be a barrier to administrative separation for that particular offense. So that would be rare. Would they be separate might they be separated for other misconduct that they commit or other bases, again, i dont specifically have the data for that. And to answer the second question first, i believe we have similar policies in the navy. To the first question, im not aware of any case in which a in which a sja found probable cause, they made a recommendation to go forward to trial, did a general courtmartial convening authority 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. Id agree that that is for the first question, its very rare. I do know that it has occurred, but in the instance where ive seen it happen, there was an 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 period of time in there, and then for the administrative separation, i agree with captain monahan that Service Regulations do prohibit acquittals moving forward for enlisted personnel. The for officers, after an acquittal, there can be a show cause separation proceeding, but i have not seen that occur after an acquittal for a Sexual Assault. Maam, to go to your first question, theres the recommendation is not limited to just whether or not theres pc. Its pc and then a recommendation, a couple of other things, a recommendation of whether or not to go forward. In the air force, we have not had had a convening authority. We have had staff judge advocates say there is pc, but i do not recommend you go forward for the following reasons and lay out reasons, and then the convening authority did not go forward. We have not had the situation to my knowledge where they says, yes, pc, yes, go forward and then the convening authority said no, im not Going Forward. We have not had to go to the secretary as of yet. To your second question on administrative discharges, in the air force an acquittal or the underlying basis the other lying facts that led rise to the acquittal cannot serve as a basis for an administrative discharge. However, again, like the other service ifs there is other underlying misconduct, and i have seen subsequent misconduct then trigger an administrative discharge. I would also tiss and i guesss is not really the era for this because if there is if there is a conviction of any sort of sexual offense, it automatically requires that a discharge from the Court Martial, but in a prior lifetime as a defense counsel, we had i did see convictions of a sexual offense that then did not receive a discharge but then that could not be used as a basis to trigger an under other than honorable discharge. They were limited to getting a general discharge for that member. I had the same sentiments for both questions. I think the issue going back, though, about the policy of an acquittal goes back to the article 32, and if you find no probable cause, that has triggering repercussions for administrative avenues. So i would envision a system, and ill need to go back, that if you find no probable cause in article 32, thats binding that the Commanding Officer be barred from taking other administrative actions, and thats not a system i think we would want, but as far as directed to your questions, maam, i echo the same thing that my colleagues did. And we have time for one staff question. Im sure theres just a short answer. In practice how do staff judge advocate to convening authorities . Does the sja summarize the article 32 or does the convening authority sit and read the article 32 report, and is there anything or a Service Regulation that requires or dictates how the article 32 information is conveyed to a convening authority . Ill start with that, so the 32 report is in the file, and i will say that in a case where there is a negative article 32 officer finding thats highlighted in my article 40 or im sorry, article 34 advice, it draws the convening authoritys attention, and it is it depends on the case and the convening authority, whether they Read Everything or whether i summarize that for the convening authority. And i would agree, in the navy, its case by case. It depends on variables such as the convening authority and the staff judge advocate how much the convening authority reads and how much is orally briefed to him or her. I would agree with my colleagues. Well, that was short and sweet. I think general ri speakily spe my experience, a staff judge advocates provide both written advice and oral advice to the convening authorities, and in my experience, in assisting three different convening authorities theyve read every word of that article 32 investigation. The foes report and had questions for me about it and why is it different if there is a difference, so they are very cognizant of whats going before them, very interested in making sure that they make the right decision for the right reasons, and ive seen them be very thorough. I had one convening authority that had tabbed the 32 report so that we could go in and sit and talk about it and had questions about different testimony back this was pre2014, but very aware of whats going on and very interested to know why there is a difference. I would echo that. Thats exactly true. I think its a very dynamic process, and talking to the sjas in the field, the convening authorities are very detail oriented. They Read Everything or near everything. They have a lot of questions. This is definitely not just a routine oriented exercise, so i would just suggest that it is dynamic, and a give and take, a back and forth, and they have to feel comfortable with the decisions theyre making. Thank you all very much. Im going to try to compress our break from 15 minutes to 10 minutes so that we can try to keep staying on track. Thank you so much for coming
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