Yes, evidence that is objected to during an Article 32 preliminary hearing can absolutely be excluded at a later court-martial. Making objections during the Article 32 hearing is a critical step in preserving the issue for a future ruling by a military judge. While the Preliminary Hearing Officer (PHO) can rule on some evidentiary matters for the purpose of the hearing, their rulings are not binding on the trial court.
The rules of evidence are relaxed at an Article 32 hearing, so a PHO may allow evidence, such as hearsay or unauthenticated documents, that would not be admissible at trial. However, a defense attorney will still object to this evidence on the record. This serves two purposes. First, it puts the government on notice that the defense considers the evidence improper and will challenge it later. Second, it creates a clear record that the defense did not acquiesce to the evidence’s admission.
After the case is referred to a court-martial, the defense will file formal pretrial motions, including motions in limine, to exclude the contested evidence. The military judge assigned to the trial will then conduct a hearing on the motion and make a binding legal ruling. The judge is not bound by the PHO’s prior decision and will apply the strict Military Rules of Evidence to determine admissibility.
For example, if the defense objected to an unsworn written statement at the Article 32 hearing on hearsay grounds, the PHO might still consider it. However, the military judge at trial would almost certainly exclude it unless a valid hearsay exception applies. By objecting early, the defense ensures the issue is not waived and can be fully litigated before the trial judge, who has the final authority to decide what evidence the panel members will be allowed to see and hear.