The short answer is no. An accused service member is never required to testify at an Article 32 preliminary hearing. The right to remain silent that protects an accused throughout the military justice process applies fully at this stage, and in the overwhelming majority of cases defense counsel advise the accused not to testify. Understanding why this is so, and what the limited alternatives look like, helps a service member approach the hearing with realistic expectations.
What an Article 32 hearing is
Article 32 of the Uniform Code of Military Justice, found at 10 U.S.C. 832, requires a preliminary hearing before charges can be referred to a general court-martial. The hearing is conducted by a preliminary hearing officer, often called a PHO. Its purpose is limited. The hearing officer determines whether there is probable cause to believe an offense was committed and that the accused committed it, whether the convening authority has court-martial jurisdiction, and what disposition of the charges the officer recommends. The hearing officer’s report is advisory; the convening authority makes the final referral decision.
Because the function is to test probable cause rather than to determine guilt, the Article 32 hearing is not a trial. There is no panel, no verdict, and no sentence. That limited purpose shapes everything about the accused’s choices, including whether to speak.
The accused’s right to remain silent
The privilege against self-incrimination protects the accused at the preliminary hearing just as it does at trial. The accused cannot be called as a witness by the government, cannot be compelled to answer questions, and faces no penalty or adverse inference for declining to testify. The hearing officer may not treat silence as evidence of anything. In practical terms, the accused can sit through the entire hearing and say nothing at all.
This protection is not a technicality. It reflects the basic structure of American criminal procedure, civilian and military alike, in which the burden rests on the government and the accused need not assist in building the case.
Why the accused almost never testifies
Even though the accused has the option to make a statement, experienced defense counsel rarely recommend it at the Article 32 stage, and for good reason. Anything the accused says can be recorded and used later at the court-martial itself. Testifying at the preliminary hearing exposes the accused to questioning and locks in a version of events months before trial, often before the defense has full discovery or a complete picture of the government’s case.
There is also little to gain. Because the probable cause threshold is low and the hearing officer’s recommendation is only advisory, persuading the officer rarely changes the ultimate outcome at referral. The convening authority can refer charges even over a contrary recommendation. Weighed against the risk of giving the government a preview of the defense or a prior statement to exploit, testimony usually offers a poor trade.
The unsworn statement option
If the accused does wish to be heard, the more common vehicle is an unsworn statement rather than sworn testimony. An unsworn statement allows the accused to present a position without taking an oath and, importantly, without being subject to the same cross-examination as a sworn witness. This is a meaningful distinction. A sworn witness can be questioned at length by the government; an unsworn statement is offered on the accused’s own terms.
Even an unsworn statement carries risk, however, because its content can still surface later and may reveal defense strategy. Whether to make one is a tactical decision that depends on the specific facts and should be made only with counsel.
What the accused can do instead of testifying
Declining to testify does not mean sitting passively. The accused has substantial participation rights at an Article 32 hearing. Through counsel, the accused may be present throughout, cross-examine the witnesses the government calls, object to evidence, present relevant matters bearing on the hearing officer’s limited determinations, and argue the disposition the defense believes is appropriate. A skilled defense advocate can accomplish a great deal at the hearing through cross-examination and argument without the accused ever taking the stand.
The bottom line
No rule, statute, or hearing officer can force an accused to testify at an Article 32 preliminary hearing. The privilege against self-incrimination is fully in force, silence carries no penalty, and the most common practice is for the accused to remain silent while counsel tests the government’s evidence. When the defense does decide to speak, it usually does so through a carefully considered unsworn statement rather than sworn testimony. These are strategic choices that turn on the facts of the individual case.
This article describes the general framework and is not legal advice. Any service member facing an Article 32 hearing should consult qualified military defense counsel before deciding whether to testify or make any statement.
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.