Evidence gathered through an unlawful search does not become automatically admissible simply because it is introduced at an Article 32 hearing rather than at trial. The preliminary hearing is governed by a more relaxed evidentiary framework than a court-martial, and the exclusionary rule does not apply with the same force at this stage. But that does not mean that challenges to unlawfully obtained evidence are pointless before referral. Identifying and documenting the problem early creates the foundation for a suppression motion after charges are referred.
The strategic value of raising an evidence challenge at the Article 32 stage lies in what it exposes. Investigators are put on notice that their methods will be scrutinized. The preliminary hearing officer’s observations about the evidence can be part of the record the defense uses later. And the government is forced to explain the basis for the search in a setting where the full resources of a trial have not yet been deployed.
Evidentiary Standards at Article 32 vs. Court-Martial
At a court-martial, the Military Rules of Evidence govern what can be admitted and in what form. Hearsay is generally excluded, authentication requirements must be met, and foundation must be laid for expert opinion. The Article 32 hearing operates under a more permissive framework. The preliminary hearing officer may receive any evidence that has probative value to a reasonable person, which means that hearsay, unauthenticated documents, and preliminary laboratory reports that would never make it into a trial can be considered at the Article 32 stage.
This relaxed framework benefits the government in most cases, allowing it to present a case summary rather than a fully developed evidentiary presentation. But it also gives the defense an opportunity. If the defense can show, even under a relaxed standard, that the evidence supporting the charge is thin, contradicted, or obtained through questionable means, that showing is made part of the record. The same relaxed rules that allow the government to rely on summaries also allow the defense to introduce material that might not survive trial court scrutiny.
Why the Rules of Evidence Do Not Fully Apply at This Stage
The Military Rules of Evidence were designed for trial proceedings where the stakes of admitting unreliable evidence are highest. The Article 32 hearing operates under a different standard because its purpose is different: it is a screening process, not a merits determination. The preliminary hearing officer’s task is to assess whether the evidence, taken as a whole, supports a finding of probable cause. For that purpose, hearsay, preliminary reports, and summary documents are often sufficient, and requiring trial-level authentication for every exhibit would make the hearing far more burdensome than its function requires.
This relaxed framework has a practical consequence for the defense: evidence that the defense introduces at the Article 32 stage is also subject to the more permissive standard. Material that might not survive trial-level scrutiny can be presented to the PHO and become part of the record. Defense counsel who understand this dynamic can use the Article 32 hearing to put favorable evidence before a neutral officer without the full evidentiary burden that trial would require.
How Illegally Obtained Evidence Gets Challenged Later at Trial
The Article 32 hearing is not the appropriate forum for a suppression motion under Military Rule of Evidence 311. That motion is filed after charges are referred to trial and is addressed to the military judge, who applies the full evidentiary framework and makes findings that determine what the government can use at trial. The Article 32 hearing is the place to identify and document the problem, not to resolve it.
Defense counsel who recognize that evidence may have been unlawfully obtained should use the Article 32 hearing to establish the factual record that will support the later suppression motion. This means cross-examining the investigators about the circumstances of the search or seizure, introducing any documents related to the authorization process, and creating a transcript that captures the government witnesses’ account of how the evidence was obtained. That transcript becomes the foundation for the suppression motion that follows.
How Suppression Motions Work After Charges Are Referred to Trial
After charges are referred to a general or special court-martial, the defense may file motions to suppress evidence under Military Rule of Evidence 311. The motion must be filed within the time limits set by the military judge’s scheduling order, must identify the specific constitutional or statutory violation, and must establish that the evidence the government intends to use was obtained as a direct result of that violation. The government bears the burden of establishing that an exception to the exclusionary rule applies if the violation is established.
The military judge hears the motion, takes evidence if necessary, and issues a ruling. If the motion is granted, the suppressed evidence cannot be used in the government’s case in chief. If the ruling is adverse, the defense may seek interlocutory review in appropriate circumstances or preserve the issue for post-conviction appeal. The suppression motion process is one of the most important pretrial battles in a case involving a contested search or seizure, and the outcome can determine whether the government has sufficient evidence to proceed.
The Strategic Value of Exposing Bad Evidence Early
Even when the Article 32 hearing will not produce a suppression ruling, exposing the evidentiary weakness of unlawfully obtained evidence early in the process has strategic value. Government witnesses who are cross-examined about the circumstances of a contested search must articulate their justification in a sworn context. That testimony creates a record that constrains what they can say later. If their account changes between the Article 32 hearing and trial, the inconsistency is available for impeachment.
The PHO who hears this examination and observes the weakness of the government’s evidentiary foundation may note it in the report. A report that identifies significant evidentiary problems, even without recommending against referral, gives the convening authority reason to pause and gives the defense a documented professional assessment that the case has problems. These are all outcomes that serve the defense’s long-term interests even when they fall short of dismissal at the preliminary stage.
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.