Defense counsel preparing for an Article 32 preliminary hearing naturally want to see what the government has gathered, including investigative reports, witness statements, and physical or documentary evidence. The question of how much of that material the defense can obtain before the hearing has a more limited answer than many expect. The reforms that reshaped Article 32 of the Uniform Code of Military Justice, implemented through Rule for Courts-Martial 405 and effective at the start of 2019, deliberately removed broad discovery as a purpose of the preliminary hearing. As a result, the defense can request the production of certain evidence and witnesses relevant to the hearing, but it cannot use the hearing as a vehicle for full pretrial discovery of the investigative file. Knowing where the boundary sits helps the defense ask for the right things at the right time.
Discovery is no longer a purpose of the hearing
The most important change to understand is structural. Before the reforms, the Article 32 process was broader and was often used to probe the government’s case in depth. The amendments narrowed the proceeding to focus on the probable cause determination and eliminated discovery as an authorized purpose of the hearing. The preliminary hearing officer is directed to concentrate on whether probable cause exists, on jurisdiction, on the form of the charges, and on a recommended disposition, not on giving the defense a preview of the entire investigative file.
This means that a defense request framed as “give us everything the investigators collected” will not succeed at the Article 32 stage simply because a hearing is occurring. Broad investigative-file disclosure is handled through the separate discovery rules that apply after referral, not through the preliminary hearing. The hearing and full discovery are different processes serving different functions.
What the defense can request for the hearing
Within the hearing’s limited scope, the defense does have meaningful tools. Rule for Courts-Martial 405 provides a process for the defense to request the production of witnesses to testify at the preliminary hearing and to request documentary evidence under the control of the government. The defense can also seek evidence that is not under government control. Evidence not within the government’s control may be obtained through a pre-referral investigative subpoena, which can be issued by a military judge or by trial counsel, allowing the parties to reach material held by third parties.
These requests are evaluated against defined standards. If trial counsel objects to producing evidence, defense counsel may ask the preliminary hearing officer to determine whether the evidence is relevant, not cumulative, and necessary to the matters the hearing is meant to decide. When the evidence is not under government control, the preliminary hearing officer must find not only that it is relevant, not cumulative, and necessary, but also that producing it will not cause unreasonable delay. Similar relevance and availability standards govern requests for live witnesses, who appear only when reasonably available and when their testimony is relevant and not cumulative.
The standards in practice
These standards shape how the defense should frame requests. A demand for the entire case file is unlikely to satisfy the requirement that the item be relevant, not cumulative, and necessary to the hearing’s narrow purposes. A targeted request for a specific record or a particular witness whose testimony bears directly on probable cause stands a much better chance, because it can be tied to the questions the preliminary hearing officer must answer. The defense should therefore identify with precision what it seeks and explain how each item connects to the limited issues before the officer.
The pre-referral investigative subpoena is especially useful for reaching material that the government does not hold, such as records maintained by a third party. Because it can issue before referral, it gives the defense a route to relevant outside evidence that the production rules for government-controlled material would not cover.
The constraints to keep in mind
Two constraints recur. First, relevance and necessity to the hearing’s purposes are the gatekeepers; material that would be useful only for general trial preparation, rather than for the probable cause determination, may fall outside what the officer will order produced. Second, the unreasonable-delay limitation applies to evidence outside government control, so a request that would significantly slow the proceeding can be denied even if the evidence is otherwise relevant. The defense operates within these limits at the Article 32 stage and obtains broader access later, through the post-referral discovery rules, if the case is referred to trial.
A realistic expectation
So can the defense request access to investigative files before the hearing? It can request specific, relevant evidence and the production of witnesses tied to the hearing’s purposes, and it can use a pre-referral investigative subpoena to reach certain third-party material. What it cannot do is treat the Article 32 hearing as a tool for comprehensive discovery of the investigative file, because the reforms removed discovery as a purpose of the proceeding. The practical strategy is to make focused, well-justified requests that connect each item to probable cause, jurisdiction, or the form of the charges, while reserving broader document demands for the discovery process that follows referral. Counsel familiar with the current rules can frame these requests to obtain the most useful material the limited framework allows.
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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