Defense counsel coming to a court-martial from a civilian criminal background often expect the Article 32 preliminary hearing to function like a preliminary hearing in state court, complete with suppression arguments, broad cross-examination, and full evidentiary objections. That expectation is mistaken. Since the reforms that reshaped Article 32, the hearing has a narrow statutory purpose, and the kinds of objections the defense can usefully make are correspondingly limited. This article explains those limits and how counsel should work within them.
The Narrow Purpose of the Article 32 Hearing
Article 32 of the UCMJ requires a preliminary hearing before a charge may be referred to a general court-martial. After the reforms that took effect in the FY 2014 cycle and the broader 2019 changes, the hearing is confined to a defined set of determinations. The preliminary hearing officer examines whether each specification alleges an offense under the UCMJ, whether there is probable cause to believe the accused committed the charged offense, whether the convening authority has court-martial jurisdiction over the offense and the accused, and what disposition the officer recommends. That is the whole of it.
Critically, Congress removed discovery as a purpose of the hearing. The Article 32 is no longer a mechanism for the defense to obtain the government’s evidence or to depose witnesses. The government may present much of its case by summary or by sworn statement rather than live testimony, and the volume of evidence is largely within the government’s control. These structural facts dictate what objections are available and which ones will simply be noted and set aside.
Objections Are Largely Confined to Relevance and Procedure
Because the hearing exists to test probable cause and the related threshold questions, the basis for a defense objection in most cases will be one of two things: relevance, or a failure to comply with the procedural requirements that govern the hearing. Given the limited scope and purpose of the proceeding, objections on grounds other than relevance or procedural compliance generally should not be raised, and the preliminary hearing officer is not obligated to entertain them.
This means the broad evidentiary objections familiar from trial have little traction. The Military Rules of Evidence do not apply at the Article 32 in the way they apply at a court-martial, with limited exceptions such as privileges and certain protections for victims. Objections grounded in hearsay, for instance, will usually fail because the rules that bar hearsay at trial do not govern the preliminary hearing. The defense can certainly note that evidence is hearsay or otherwise weak, but that observation goes to how much weight the hearing officer gives it, not to its admission.
The Preliminary Hearing Officer Does Not Rule on Suppression
One of the most important limitations is that the preliminary hearing officer does not adjudicate motions to suppress. Whether evidence was obtained through an unlawful search, an improper interrogation, or a defective seizure is a question for the military judge at trial, not for the hearing officer. The officer is not required to rule on the admissibility of evidence at all. The officer may note that particular evidence will likely be inadmissible at trial and may briefly discuss evidentiary or legal issues observed, but that is a comment in the report, not a binding ruling that excludes anything.
For the defense, this has a strategic consequence. Suppression theories should be preserved for litigation before the military judge through proper pretrial motions. Raising them at the Article 32 will not result in exclusion, although flagging a strong suppression issue can be useful: it may inform the hearing officer’s disposition recommendation and signal to the convening authority that the case has weaknesses worth weighing.
How Objections Must Be Raised and Preserved
Procedure still matters, and the defense must observe it. Under the governing rule for courts-martial, objections to defects in the preliminary hearing must be made to the preliminary hearing officer promptly upon discovery of the alleged error, and if the objecting party requests, the objection is included in the report. A defense that sits on a procedural defect risks waiving it. Promptly stating the objection on the record, and asking that it be memorialized in the report that goes forward, is how counsel protects the issue for later review.
The rules also allow the accused, the government, and any named victim to submit additional information the submitter believes relevant to the convening authority’s disposition decision. The preliminary hearing officer must review those submissions and attach them to the report. This is a meaningful channel for the defense to put matters before the decision maker even where a formal objection would not lie.
Using the Limited Forum Effectively
Recognizing these limits changes how a defense should approach the hearing. Because the standard is only probable cause, and most cases clear that threshold without difficulty, the defense rarely defeats referral outright. The realistic goals are different: testing the credibility of available witnesses within the relevance-bounded scope, exposing weaknesses that bear on disposition, preserving procedural objections for later, and building a record and submissions that influence the convening authority’s charging and forum decisions. Counsel who try to relitigate trial-level evidentiary disputes at the Article 32 waste the forum; counsel who use it to shape disposition and lock in objections use it well.
Summary
Defense objections at the Article 32 stage are limited by the hearing’s narrow statutory purpose. The proceeding tests probable cause, jurisdiction, the sufficiency of the specifications, and disposition, not the admissibility of evidence at trial. Objections are effectively confined to relevance and procedural compliance, the Military Rules of Evidence do not generally apply, and the preliminary hearing officer does not rule on suppression. Counsel should raise procedural objections promptly and ask that they be recorded, preserve suppression and evidentiary fights for the military judge, and use submissions and disposition arguments as the real levers available at this stage.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.