The Article 32 preliminary hearing is often misunderstood as a formality, a brief procedural stop before the real fight begins at trial. In practice, it is an opportunity with significant strategic value. The defense has the right to appear, to present evidence, and under the current framework to call and cross-examine witnesses. Used well, an Article 32 hearing can expose weaknesses in the government’s case, lock witnesses into testimony before they have been fully prepared for trial, and in the best cases convince the preliminary hearing officer that charges should not be referred at all.
The hearing also serves as an early window into the prosecution’s theory of the case. What witnesses are called, what exhibits are offered, and what arguments the government makes at this stage all provide intelligence that a defense attorney can use in preparation for trial. Treating the Article 32 as a passive proceeding to be endured rather than an active opportunity to be seized is a strategic mistake.
What the Article 32 Hearing Is Designed to Do
The Article 32 preliminary hearing replaced the older grand jury-style proceeding in the military justice system, and its design reflects a different philosophy. Rather than a secret process controlled entirely by the prosecution, the Article 32 is a hearing at which both sides have a right to appear, present evidence, and argue. The preliminary hearing officer, a neutral judge advocate, reviews the evidence to determine whether it is sufficient to support referral of the charges to a court-martial.
The hearing does not determine guilt or innocence. It asks only whether probable cause exists to believe an offense was committed and the accused committed it, and whether the charges are in proper form. That threshold is low, and the majority of Article 32 hearings result in a recommendation to refer the charges. But the value of the proceeding for the defense lies less in the likelihood of a favorable recommendation and more in the intelligence, witness examination opportunities, and evidentiary record that a well-conducted Article 32 produces.
The Defense’s Right to Call and Cross-Examine Witnesses
The defense at an Article 32 hearing has the right to call witnesses and to cross-examine witnesses called by the government, subject to the preliminary hearing officer’s authority to manage the proceeding. This right is not unlimited. Witnesses who are unavailable, who invoke their own rights against self-incrimination, or who are outside the reach of the military subpoena process may not be compellable at this stage. The PHO also has authority to limit examination that is cumulative or beyond the scope of the issues being addressed.
Within those limits, effective cross-examination at the Article 32 stage can be enormously valuable. Witnesses who have not yet been fully prepared for trial-level questioning can make commitments that constrain their testimony later. Inconsistencies surfaced at the Article 32 stage become impeachment material at trial. The government witness who gives a slightly different account at the hearing than they gave to investigators has created a document that defense counsel can use months later before a panel.
Practical Limitations on Witness Availability at This Stage
Not every witness the defense wants to examine will be available at an Article 32 hearing. Civilian witnesses are not subject to military subpoena in most circumstances. Witnesses who are stationed overseas, who are in the process of separating from service, or who assert their own Fifth Amendment or Article 31 rights may be unavailable to both sides. The PHO has limited tools to compel attendance compared to the authority a trial judge exercises, and the defense must plan the hearing strategy around realistic expectations about who will actually appear.
The defense’s response to unavailability is to use the available witnesses strategically. A government witness who does appear should be examined thoroughly. A witness the defense controls who can provide favorable testimony should be called. And the record of who was unavailable and why should be documented carefully, because that documentation may support requests for continuance, additional process, or other relief if the unavailability affects the fairness of the hearing.
How a Strong Article 32 Defense Can Derail a Prosecution Early
A well-conducted Article 32 defense can produce outcomes that go beyond a favorable PHO recommendation. Prosecutors who see their witnesses perform poorly under cross-examination must reassess the strength of their case. Command officials who observe the evidentiary weaknesses exposed at the hearing may become less enthusiastic about the referral decision. And in cases where the PHO’s recommendation against referral is supported by a detailed analysis of evidentiary problems, the convening authority faces a documented record of those problems that cannot simply be ignored.
Derailing a prosecution at the Article 32 stage is not the primary goal of the hearing, but it is a realistic outcome in cases where the government’s evidence is genuinely thin. The defense attorney who approaches the hearing with that possibility in mind, and who structures the examination of witnesses and presentation of evidence to maximize pressure on the government’s case, is pursuing a strategy that the system was designed to permit.
Using the Article 32 to Build Your Trial Defense
Even when a favorable Article 32 outcome is unlikely, the hearing creates a trial preparation opportunity that would not otherwise exist this early in the case. Witnesses are sworn and examined under conditions that produce a transcript. That transcript is a discoverable document that must be disclosed to the defense. Any inconsistency between a witness’s Article 32 testimony and their trial testimony is impeachment material that the defense can use to attack credibility before the panel.
Defense attorneys who attend Article 32 hearings with trial preparation as a primary objective examine witnesses in ways that are designed not only to create a favorable record for the PHO but to generate commitments that constrain those witnesses at trial. The questions asked and the answers obtained at the Article 32 stage often shape how the trial is contested months later.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.