Yes. In an Article 32 preliminary hearing, the defense can submit written materials to the preliminary hearing officer, and doing so is often one of the most useful tools available to the accused at this stage. The Article 32 hearing replaced the older, broader pretrial investigation, and its scope is narrower than many people expect. Understanding what the preliminary hearing officer, commonly called the PHO, is allowed to consider, and how written submissions fit into that framework, helps explain why a well prepared written submission can matter even in a limited proceeding.
The Purpose and Scope of the Article 32 Hearing
The Article 32 preliminary hearing is not a trial and not a mini trial. Under Rule for Courts-Martial 405, its limited purposes are to determine whether there is probable cause to believe an offense was committed and that the accused committed it, to determine whether the convening authority has court-martial jurisdiction over the accused and the offense, to consider the form of the charges, and to recommend a disposition of the case. The PHO is a neutral officer, ordinarily a judge advocate when one is reasonably available, who runs the hearing and then prepares a report with findings and a recommendation.
Because the hearing is focused on probable cause and disposition rather than on resolving guilt, the evidence presented tends to be more limited than at trial. This is precisely why written advocacy can be valuable. The defense may not be able to call every witness or develop every line of evidence live, but it can still place argument and information before the PHO in writing.
Written Submissions Under R.C.M. 405(k)
The clearest vehicle for written materials is R.C.M. 405(k). That rule allows the accused, the government, and any named victim to submit additional information that the submitter believes is relevant to the convening authority’s disposition of the charges and specifications. Notably, the rule does not impose strict limits on the type of information that may be submitted, and it provides a way to get information before the decision makers even if that information would not have been admissible at the preliminary hearing itself.
Materials submitted under R.C.M. 405(k) are reviewed by the preliminary hearing officer and attached to the preliminary hearing report. The PHO is permitted to consider that supplementary information when forming the recommendation as to disposition. So a defense submission under this rule can both inform the PHO’s recommendation and reach the convening authority, who ultimately decides whether to refer charges and to what level.
What a Written Submission Can Accomplish
A defense written submission can serve several goals. It can argue that probable cause is lacking on one or more specifications. It can present mitigating information that bears on disposition, such as the service member’s record, the context of the allegations, or weaknesses in the government’s theory. It can raise concerns about the form of the charges, such as duplication or overcharging. And it can highlight reasons the case should be disposed of at a lower level than a general court-martial, or resolved without trial at all.
There is, however, a distinction worth keeping in mind. R.C.M. 405(k) is generally a vehicle for presenting information relevant to disposition, not the designated mechanism for lodging procedural objections to the conduct of the hearing itself. That does not mean objections are pointless, because counsel may raise them when they believe doing so will influence the PHO’s findings and recommendation. It simply means the defense should be deliberate about whether a given point is best framed as substantive disposition argument or as a procedural objection preserved for later.
Timing and Strategy
Whether and how to submit written arguments is a strategic decision. Some defense teams prefer to keep their theory of the case close at this early stage, especially because the government can read whatever is submitted and adjust accordingly. Others see real value in shaping the PHO’s recommendation and the convening authority’s referral decision before the case hardens into a referred charge sheet. A persuasive written submission can sometimes lead to charges being reduced, certain specifications being dismissed, or the case being sent to a lower forum.
The submission should be coordinated with the rest of the defense approach at the hearing, including any cross examination of witnesses the defense is permitted to question and any evidence the defense chooses to present live. Because the PHO will attach the submission to the report and the convening authority will see it, the writing should be accurate, focused, and professional.
It also helps to keep the limited function of the hearing in mind when deciding how much to argue in writing. The PHO is asked to reach a probable cause determination, address jurisdiction, comment on the form of the charges, and recommend a disposition. A submission that speaks directly to those questions, rather than rehearsing the entire defense case, tends to be more effective. For example, a focused argument that the government has not shown probable cause as to a particular specification, supported by the absence of a key element, can be more persuasive than a sweeping attack on the credibility of every witness. The defense can reserve broader credibility challenges for trial, where the rules of evidence apply fully and the standard of proof is beyond a reasonable doubt rather than mere probable cause.
The Bottom Line
The defense is allowed to submit written arguments and information to the preliminary hearing officer, primarily through R.C.M. 405(k), and the PHO is required to review those materials and may consider them in recommending a disposition. Given the limited but important role of the Article 32 hearing in the court-martial process, a thoughtful written submission can influence both the PHO’s recommendation and the convening authority’s referral decision. Whether to make such a submission, and what to include in it, should be decided with experienced military defense counsel who can weigh the strategic benefits against the cost of revealing the defense theory early.
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.
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