Before a serious charge can be referred to a general court-martial, the accused is entitled to an Article 32 preliminary hearing. The accused can waive that hearing, and at first glance waiving may seem like a way to avoid a stressful and exposing proceeding. Yet experienced defense counsel often advise against waiver. Even though the modern Article 32 hearing is narrower than the investigation it replaced, it still offers the defense valuable opportunities that disappear the moment the right is given up.
What an Article 32 Hearing Is Today
Under the version of Article 32 reshaped by the Military Justice Act of 2016, the preliminary hearing serves four limited purposes: to determine whether each specification alleges an offense under the UCMJ, to assess whether there is probable cause to believe the accused committed the offense, to determine whether the court-martial would have jurisdiction, and to recommend to the convening authority whether the charges should be referred for trial, dismissed, or otherwise resolved.
This is a significant change from the old system. The 2016 reforms shifted the proceeding from a comprehensive pretrial investigation, which had allowed extensive discovery and evidence gathering, to a narrower hearing modeled on federal civilian preliminary hearings. The preliminary hearing officer, usually a judge advocate, conducts a limited-scope review and issues a recommendation that is not binding on the convening authority. Even with these limits, the hearing remains a rare pretrial window into the government’s case, and that is precisely why counsel hesitates to surrender it.
Reason One: A Preview of the Government’s Case
The hearing allows the defense to examine the government’s evidence, to question witnesses, and to challenge the legal and factual basis for the allegations. Although Congress narrowed the discovery role of the hearing, the proceeding can still serve as a useful pretrial discovery tool. The defense may gain insight into the government’s theory, learn what evidence the prosecution intends to rely on, and in some instances gain access to investigative materials and the chance to question government witnesses.
That preview is hard to replicate. Watching how a witness testifies under questioning, observing inconsistencies, and locking in early accounts can shape the entire defense strategy for trial. A witness who testifies one way at the hearing and differently at trial has handed the defense a tool for impeachment. Waiving the hearing forfeits that opportunity.
Reason Two: A Chance to Defeat or Reduce the Charges Early
The preliminary hearing officer evaluates whether probable cause supports each specification and whether each specification states an offense. A well-prepared defense can argue that the government has not met even this modest threshold for some or all of the charges. If the officer recommends against referral of a charge, or recommends dismissal, that recommendation, while not binding, gives the defense ammunition to persuade the convening authority not to send the case forward or to reduce its scope.
Resolving or shrinking a case before referral is far better for the accused than fighting every charge at a full court-martial. Waiving the hearing eliminates this early off-ramp.
Reason Three: Preserving and Documenting Testimony
The hearing creates a record. Sworn testimony given by witnesses, including the complaining witness in some cases, is captured while memories are relatively fresh. That record can be used later to confront a witness who changes their story, to support a motion, or to demonstrate weaknesses in the prosecution’s narrative. Once a case is at trial, the defense rarely gets a second chance to examine the government’s witnesses outside the courtroom. The Article 32 hearing is often the only pretrial forum where that examination is possible.
Reason Four: Testing Investigative Quality and Procedure
The hearing lets the defense probe how the investigation was conducted, whether protocols were followed, and whether the evidence is as solid as the charge sheet suggests. Counsel can explore gaps in the timeline, problems with how evidence was handled, and inconsistencies among witnesses. Even where the officer ultimately finds probable cause, the information gathered helps the defense build motions and trial themes.
Weighing the Decision
None of this means waiver is never appropriate. There are situations where counsel may reasonably recommend waiving, such as when the defense wants to avoid giving a complaining witness a rehearsal opportunity, when the facts are not in genuine dispute and the strategy is to negotiate a resolution, or when a tactical reason exists to keep the defense theory concealed until trial. The decision is case-specific.
It is also worth knowing that a written waiver is not automatically binding. The accused may submit a waiver, but the convening authority decides whether a hearing is nonetheless required, so even a waiver does not guarantee the hearing will be skipped.
The Bottom Line
A defense attorney advises against waiving an Article 32 hearing when the benefits of the proceeding outweigh its risks, and for many serious cases they do. The hearing offers a preview of the government’s evidence, a chance to lock in testimony, an opportunity to challenge probable cause and narrow the charges before referral, and a means of testing the quality of the investigation. These advantages vanish with a waiver. Because the decision carries lasting consequences for the trial that may follow, it deserves careful, individualized analysis rather than a reflexive choice to skip the hearing.
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.