Article 32 Preliminary Hearings

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Article 32

A preliminary hearing under Article 32, UCMJ is a necessary step that the government must take before referring a case to a general court-martial. They are never required if a case is to be referred to a special court-martial or any lesser forum.

The purpose of an Article 32 hearing is for an impartial officer, who must be a judge advocate, to hear evidence from the government (and, if the accused chooses, from the defense) and:

(1) To determine whether there is probable cause to believe an offense or offenses were committed and whether the accused committed it;
(2) To determine whether a court-martial would have jurisdiction over the offense(s) and the accused;
(3) To consider whether the charges and specifications are in the proper form; and
(4) To make a recommendation as to the disposition of the charges.

The most important thing to note about this process is that it is non-binding – that is, the convening authority must consider the report of the Article 32 preliminary hearing officer (PHO), but is free to completely ignore the PHO’s recommendations.

An accused facing an Article 32 hearing will be assigned active-duty judge advocate defense counsel, but is also free to retain civilian counsel. You will be given a reasonable time to obtain civilian counsel and to have your civilian counsel present for the hearing, but the hearing may not be unduly delayed for this purpose.

Consider bringing your civilian counsel on even at this early stage. Though the government is not required to put their witnesses on the stand in an Article 32, they often do, and regardless it is important to make a legally effective record that might prove crucial in the follow-on court-martial. Military judges are often more likely to hold the government’s feet to the fire in the discovery process when the proper objections have been made to the Article 32, and made part of the record of the case.