Just as a civilian felony indictment must pass through the Grand Jury process, military criminal charges must pass through an Article 32 preliminary hearing before being referred to a General Court-Martial. Article 32 is a critical juncture on the road to a court-martial. If you are notified that you have an upcoming “Article 32,” it means your life and career may be in serious peril. We recommend consulting with our expert attorneys immediately to see if we can help defend your service.

What is “Article 32”?

“Article 32” refers to Article 32 of the Uniform Code of Military Justice (UCMJ). The UCMJ is the set of federal laws that governs all criminal justice in the armed forces. Article 32 is located in Title 10 of the United States Code, Section 832 [hyperlink it: https://www.law.cornell.edu/uscode/text/10/832].

Here’s a quick rundown of what Article 32 requires:

  • Before the command sends a case to a general court-martial, it must conduct a preliminary hearing.
  • The preliminary hearing will be administered by a neutral officer, not the prosecutor or the command.
  • The purpose of the preliminary hearing is limited to the following questions: (1) Do the specifications properly allege an offense under the UCMJ; (2) Is there probable cause to believe the accused committed the offense; (3) Does the command have jurisdiction over the accused; and (4) Whether the hearing officer recommends the case go to trial.

What happens after the Article 32 hearing?

After the hearing, the Preliminary Hearing Officer (PHO) prepares and submits to the convening authority a report containing findings and recommendations. But these recommendations are just that: recommendations. The convening authority can still decide to send the case to trial – and they almost always do.

Is an Article 32 hearing like a grand jury?

It is somewhat similar. Both are designed to ensure that a neutral party has a chance to examine the charge sheet and determine whether it meets a minimum threshold of reasonableness and legal sufficiency before it goes to trial. 

However, there are many differences. Article 32 hearings are conducted in conference rooms, not courtrooms. They are not secret, closed proceedings; they are open to the public. Most significantly, the accused and their defense counsel have a right to be present at this hearing.

What are my rights at an Article 32 hearing?

Accused servicemembers have the following rights at the Article 32 hearing:

  • The right to be advised of the charges.
  • The right to be represented by defense counsel.
  • The right to cross-examine Government witnesses.
  • The right to present additional evidence.
  • The right to an open hearing absent a showing of good cause that outweighs the value of openness.

Practically speaking, what does it look like?

Usually, your command will tell you to show up at a conference room somewhere in Company or Battalion HQ at a specific time and date during the duty day. When you arrive, there will a prosecutor (probably a Judge Advocate in the rank of O-3 or O-4), a PHO (probably a Judge Advocate in the rank of O-4), and two or three paralegals. The hearing will be conducted around a conference room table. It will be recorded. Neither side will be likely to call witnesses. The Government will submit an evidentiary packet – a big stack of documents, photos, and other evidence that supports their case. Both sides will have the chance to make arguments to the PHO. After evidence is admitted and all arguments have been made, the PHO will close the hearing to deliberate, and you’re free to go about your day. The PHO typically returns the report to the convening authority within a few weeks.

Can I “win” the case at an Article 32?

Practically speaking, no. It is virtually impossible to “win” an Article 32. Even if the PHO recommends not sending the case to trial, but you can definitely “lose” an Article 32 if you or your attorney make critical missteps, like showing your hand too early or submitting testimony that may later hurt your case.

Should I waive an Article 32 hearing?

It may be appropriate to waive an Article 32 in rare cases, but we strongly encourage you to consult with an experienced military defense attorney before you waive anything.

Is there any advantage to attending the Article 32?

Absolutely. Prior to 2013, Article 32 used to be a powerful tool for the defense to conduct discovery. Today, the defense’s opportunities to examine the case are much more limited. The PHO does not have the ability to issue subpoenas. Still, the modern Article 32 hearing presents critical opportunities to hone your strategy at court-martial.

  • The Government’s argument at the Article 32 hearing is a preview of how they think about their case and what they will argue at trial.
  • The PHO’s recommendations offer a fresh perspective. They are an independent, impartial attorney with nothing to gain or lose; what do they think about this case?
  • If the Government puts on witnesses, you have an opportunity to cross-examine them and lock in their testimony. 

Can I appeal a defective Article 32?

Sometimes, but it generally is not helpful. Not every legal error leads to meaningful progress for the accused. Article 32(g) specifically states that the failure to follow the requirements set forth in Article 32 does not constitute jurisdictional error. In plain English: The fact that the Government messed up or failed to comply with some technical requirement does not mean you can get your entire case thrown out later. Still, an experienced military defense attorney can help turn procedural errors in the preliminary hearing process to your advantage down the line.

An Article 32 preliminary hearing may feel informal, but the decisions made here can echo throughout your entire court-martial. What you say, what you submit, and what you reveal can strengthen or weaken your defense long before trial begins. This is the moment to think strategically, not react emotionally. If you have been notified of an Article 32 hearing, contact experienced military defense counsel immediately to protect your rights, control the narrative, and position your case for the strongest possible outcome.

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