Yes. At a modern Article 32 preliminary hearing, both the government’s representative and the defense are permitted to argue for the disposition each side believes is appropriate. This is not a courtroom-style summation to a jury, because there is no panel and no finding of guilt at this stage, but each party does have the right to address the preliminary hearing officer and advocate for a recommendation. Understanding what that argument can and cannot accomplish requires understanding what the Article 32 hearing is for after the major statutory changes that took effect on January 1, 2019.
The Narrowed Purpose of the Article 32 Hearing
Article 32 of the Uniform Code of Military Justice requires a preliminary hearing before a charge can be referred to a general court-martial. Rule for Courts-Martial 405 implements that requirement. After the National Defense Authorization Act for Fiscal Year 2014 and later amendments, the hearing’s purpose is limited. The preliminary hearing officer determines whether each specification alleges an offense, whether there is probable cause to believe the accused committed the offense charged, whether the convening authority has court-martial jurisdiction over the accused and the offense, and what disposition the officer recommends.
Congress deliberately removed discovery as a purpose of the hearing. The proceeding is no longer the broad investigative tool it once was. That narrowing shapes the scope of any argument the parties make. Argument must stay tethered to probable cause, jurisdiction, the legal sufficiency of the charges, and the appropriate disposition.
The Right of Each Party to Argue Disposition
Under the procedures governing the hearing, the government’s counsel is allowed to present evidence, cross-examine witnesses, and argue for a disposition appropriate to the interests of the government. The defense has parallel rights. Defense counsel may present evidence relevant to the limited purposes of the hearing, cross-examine witnesses who testify, and argue for a disposition appropriate to the interests of the accused.
So the answer to the question is structural, not discretionary. Both sides are entitled to advocate. The government typically argues that probable cause exists, that the charges are properly framed, and that referral to a general court-martial is the appropriate disposition. The defense typically argues that probable cause is lacking on some or all specifications, that certain charges fail to state an offense, or that a lesser disposition, such as dismissal of particular charges, nonjudicial punishment, or administrative action, better serves the interests of justice.
What the Argument Feeds Into
The preliminary hearing officer is required to remain neutral and may not become an advocate for either side. The officer then prepares a report. That report must include a recommendation as to disposition, and it must take into account all evidence admitted during the hearing along with matters the parties submit. The closing arguments are the parties’ opportunity to tie the evidence to the legal standard and to the disposition they want the officer to recommend.
It is important to be precise about effect. The preliminary hearing officer’s findings and recommendation are advisory. Even where the officer concludes that probable cause does not exist for a charge, the convening authority retains the legal power to refer the charge anyway. That reality limits how much a persuasive defense argument can guarantee, but it does not eliminate its value. A strong defense argument can persuade the officer to recommend against referral, can build a record that influences the convening authority and the staff judge advocate’s pretrial advice, and can preview weaknesses the defense intends to exploit at trial.
How the Argument Differs From a Trial Summation
Because the hearing decides probable cause rather than guilt, the argument is calibrated to a low evidentiary threshold. The government does not need to prove guilt beyond a reasonable doubt, and the defense cannot win an acquittal here. Instead, the defense argument focuses on whether the government has cleared the probable cause bar, whether the specifications are legally sufficient, and why the recommended disposition should favor the accused. Argument that strays into matters outside the hearing’s limited scope can be cut off, because the officer is directed to halt the presentation of information that is not relevant to the determinations the hearing exists to make.
Practical Points for the Accused
An accused should expect that defense counsel will have a meaningful chance to argue, and should work with counsel to identify the strongest disposition theory before the hearing. The most effective arguments are usually narrow and concrete. They point to specific gaps in probable cause for particular specifications, to charging defects, or to mitigating circumstances that support a disposition short of a general court-martial. Because the officer’s recommendation and the hearing record carry forward into the referral decision, the closing argument is one of the few early opportunities to shape the trajectory of the case before charges are formally referred.
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.