The Article 32 preliminary hearing is not a trial, and the preliminary hearing officer does not rule on the admissibility of evidence the way a military judge does at trial. That limited role surprises many people and creates a practical question for the defense: if evidentiary problems cannot be decided at the Article 32 stage, how does a party make sure those problems are not lost? The answer lies in understanding what the hearing officer can and cannot do, and in using the record-making tools that the rules provide.
The hearing officer’s limited evidentiary role
Under Article 32 of the UCMJ and Rule for Courts-Martial (RCM) 405, the preliminary hearing exists to determine whether the charges allege an offense, whether there is probable cause to believe the accused committed the offense, whether the convening authority has jurisdiction, and what disposition the hearing officer recommends. The hearing is focused on probable cause, which is one of the lowest standards in the legal system. The 2019 reforms deliberately narrowed the hearing’s purpose and removed broad discovery as an authorized objective.
Because of this narrow purpose, the preliminary hearing officer applies a relaxed approach to evidence rather than the full Military Rules of Evidence that govern a court-martial. The officer is not the gatekeeper who decides whether a confession was lawfully obtained, whether a search was valid, or whether a piece of testimony is admissible hearsay. Those are merits questions reserved for the military judge after referral. As a result, an objection that a piece of evidence is inadmissible will generally not be ruled on at the Article 32.
Preservation through the report and written objections
Even though the hearing officer does not rule on admissibility, the rules build in a preservation mechanism. Under RCM 405, the preliminary hearing officer is not required to rule on objections that the procedures of RCM 405 were not followed, but the officer must include those objections in the report if the objecting party requests it. The officer may also set a reasonable period after the hearing closes for the parties to submit written objections, and the officer may, but is not required to, respond to each objection in the report.
This is the heart of preservation at the Article 32 level. The defense preserves an issue not by winning a ruling but by making the objection on the record and requesting that it be memorialized in the hearing officer’s report. The written report, with the noted objections, travels with the case to the convening authority and becomes part of the documentary history that the military judge and, later, appellate courts can review. An issue that is clearly stated and recorded is preserved; an issue that is never raised may be treated as forfeited or waived.
Building the factual record for later motions
A second form of preservation is factual rather than legal. Although the hearing officer will not suppress evidence, the Article 32 hearing can be used to lock in testimony and create a record that supports a later trial motion. When a witness testifies at the hearing, the defense can develop facts about how evidence was gathered, what a witness actually observed, and where accounts are inconsistent. That sworn testimony can later support a motion to suppress, a motion in limine, or impeachment at trial. The contemporaneous record made at the hearing is often more valuable than any ruling the hearing officer could have given, because it freezes the facts while memories are fresh.
The defense must approach this deliberately. Because the hearing is no longer a discovery device, the government is not obligated to use the Article 32 to lay out its whole case, and witnesses may be limited. Counsel decides which witnesses to call and which questions to ask with an eye toward the trial motions that will follow, not toward winning a probable cause ruling that is rarely in genuine doubt.
Why most evidentiary fights move to the trial stage
It helps to recognize what the preservation effort is aiming at. After referral, the military judge resolves admissibility through motions practice under the full Military Rules of Evidence: motions to suppress under MRE 311 through 317, hearsay objections, authentication challenges, and the rest. The Article 32 stage is where issues are spotted, recorded, and factually developed so that they are ready to be litigated before the judge. Preservation at Article 32 is therefore a bridge to the trial stage rather than a substitute for it.
The risk of waiver
Preservation also includes guarding against losing rights. The right to a preliminary hearing is a personal right of the accused, and there are limits on waiving it without informed consent. If the accused waives the Article 32 hearing, the opportunity to make and record objections at that stage is lost, although many evidentiary issues can still be raised by motion at trial. Counsel weighs whether waiving the hearing forfeits any tactical advantage, including the chance to capture witness testimony and to put procedural objections into the report.
Conclusion
Evidentiary issues are preserved at the Article 32 level not by obtaining rulings, because the preliminary hearing officer applies a relaxed evidentiary approach and does not decide admissibility, but by making clear objections on the record and requesting that they be included in the hearing officer’s report under RCM 405, and by using witness testimony to build a factual record for later motions. The substantive admissibility fights are reserved for the military judge after referral under the full Military Rules of Evidence. The defense’s job at the Article 32 is to spot the issues, document them, and develop the facts so that nothing is forfeited and every motion at trial is built on a solid foundation.
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.