What Is the Article 32 Preliminary Hearing and What Is Its Purpose?

An Article 32 preliminary hearing must be held before charges can be referred to a general court-martial, unless the accused waives it and the referral authority agrees. Its purpose is limited by statute to four questions: whether each specification alleges an offense, whether there is probable cause that the accused committed it, whether the convening authority has court-martial jurisdiction over the accused and the offense, and what disposition is recommended (Article 32(a)(2)). An impartial hearing officer, ordinarily a certified judge advocate, writes a report to the convening authority or, for charges a special trial counsel controls, to the special trial counsel. The report informs the referral decision but does not make it.

When a hearing is required

A preliminary hearing “shall be held before referral of charges and specifications for trial by general court-martial” (Article 32(a)(1)(A)). No Article 32 hearing is required before a special or summary court-martial. Under R.C.M. 405(a) as amended by Executive Order 14130 (December 20, 2024), no charge may be referred to a general court-martial “until completion of a preliminary hearing in substantial compliance with this rule”, and the hearing “enables the impartial assessment of the case so that the preliminary hearing report can meaningfully inform a disposition determination.”

Waiver. The accused may submit a written waiver; the hearing may then be skipped if the convening authority, or for charges under a special trial counsel’s authority the special trial counsel, “determines that a hearing is not required” (Article 32(a)(1)(B)).

A narrower proceeding since 2014

The hearing was once an “investigation”. The FY2014 National Defense Authorization Act (Pub. L. 113-66) recast it as a preliminary hearing with the four limited purposes, effective for preliminary hearings conducted on or after December 26, 2014 (Cornell effective-date note to § 832). The statute now limits the presentation of evidence and examination of witnesses “to the matters relevant to determinations under subsection (a)(2)” (Article 32(d)(4)).

The hearing officer

• Who. Whenever practicable, a judge advocate certified under Article 27(b)(2); when that is not practicable because of exceptional circumstances, another officer, with a certified judge advocate available to advise (Article 32(b)(1)-(2)). Under R.C.M. 405(e)(1) as amended in 2024, the convening authority details “an impartial judge advocate, not the accuser,” whom the Judge Advocate General (or for the Marine Corps the Staff Judge Advocate to the Commandant) certifies as having the requisite training and experience.
• Grade. Whenever practicable, equal or senior in grade to the military counsel at the hearing (Article 32(b)(3)).
• Impartiality. The officer “shall not depart from an impartial role and become an advocate for either side” and is disqualified from acting later in the same case in any other capacity (R.C.M. 405(e)(1)(E)).
• Who details. The convening authority, or, if a special trial counsel controls the charges, a hearing officer provided by the convening authority at the special trial counsel’s request (Article 32(a)(1)(C)).

Rights at the hearing

The accused is advised of the charges and the right to counsel, may be represented as provided in Article 38, may cross-examine witnesses who testify, and may present additional evidence relevant to the four issues (Article 32(d)(1)-(2)).

Witnesses and evidence. Under the 2024 rules, defense counsel names requested witnesses; if the government objects, the defense must establish by a preponderance of the evidence that a witness is “relevant, not cumulative, and necessary”. A military witness’s commanding officer decides availability and form of testimony based on operational necessity, and that determination is final. “A civilian witness cannot be compelled to provide testimony” (R.C.M. 405(i)(2)). The officer “may consider other evidence … that the preliminary hearing officer determines is reliable”, and “Written statements need not be sworn” (R.C.M. 405(k)(2)(B)). The officer “shall not call witnesses sua sponte” (R.C.M. 405(k)(1)).

The victim. “A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available”, and declining is not by itself grounds for ordering a deposition (Article 32(d)(3)). The hearing is recorded, and the victim may request the recording (Article 32(e)). Victims’ rights more broadly are covered in victims’ rights and the Special Victims’ Counsel program.

Open hearing. “Preliminary hearings are public proceedings and should remain open to the public whenever possible”. Access may be restricted only for an overriding interest, with any closure narrowly tailored after considering alternatives (R.C.M. 405(k)(3)). Privileged or classified items need not be disclosed to the defense before the hearing, and protective orders may govern any that are (R.C.M. 405(d)(3)-(4)).

Uncharged offenses. If evidence indicates an uncharged offense, the officer may consider it if the accused is present, is informed of it, and has the same opportunities for representation, cross-examination, and presentation (Article 32(f)).

The report

The officer submits a written report, with the recording, covering for each specification the reasoning and conclusions on the four issues, a summary of relevant testimony and documents, observations on witnesses and the availability and admissibility of evidence at trial, recommended changes to the charges, and analysis of later submissions by the parties or a victim (Article 32(c)). The 2024 rule calls the report “an impartial analysis of the case that meaningfully informs the referral authority” and requires, among other things, a disposition recommendation that considers the credibility and weight of the evidence and “whether there is probably sufficient admissible evidence to obtain and sustain a conviction at trial”, and a notation of whether any offense was considered a covered offense (R.C.M. 405(m)(2)).

What happens next

Ordinary cases. Before referral to a general court-martial, the staff judge advocate must give the convening authority written advice that each specification alleges an offense, that probable cause exists, and that a court-martial would have jurisdiction, plus a written disposition recommendation (Article 34(a)); what follows is described in when a general court-martial is convened.

Covered offenses. For charges a special trial counsel controls, referral “may only be made … by a special trial counsel, subject to a special trial counsel’s written determination accompanying the referral” on the same three points (Article 34(c)(1)). The report goes to the special trial counsel, who also decides on any waiver. How charges are preferred and referred is explained in preferral and referral of charges.

Effect of defects. The requirements of Article 32 “are binding on all persons administering this chapter, but failure to follow the requirements does not constitute jurisdictional error”, and a report in substantial compliance is not a basis for relief (Article 32(g)).

How it differs from a grand jury

A federal grand jury indicts; the Fifth Amendment’s grand jury clause excepts “cases arising in the land or naval forces”. The Article 32 hearing is public by default, the accused attends with counsel and can cross-examine and present evidence, and the result is an advisory report rather than an indictment.

Sources

• 10 U.S.C. § 832, Article 32, with 2013 amendment effective-date note (Cornell LII)
• 10 U.S.C. § 834, Article 34, Advice to convening authority before referral for trial (Cornell LII)
• The Bill of Rights: A Transcription, Fifth Amendment (National Archives)
• Manual for Courts-Martial, United States (2024 ed.), R.C.M. 405
• Executive Order 14130, 2024 Amendments to the Manual for Courts-Martial, United States (December 20, 2024), 89 Fed. Reg. 105343 (govinfo), Annex amendments to R.C.M. 405(a), (e)(1), (i)(2), (i)(3), (k), (m)(2)

This article is general information about military law, not legal advice for any individual case.