An Article 32 preliminary hearing under the Uniform Code of Military Justice is the gateway between sworn charges and a general court-martial referral. It is not a trial, and it is not run by the prosecution. The hearing is presided over by a neutral preliminary hearing officer, who whenever practicable is a certified judge advocate. Within that structure the trial counsel, who is the military prosecutor, plays a defined and limited role. Understanding that role helps an accused service member and family see who is doing what, and why the prosecutor is present even though the hearing is supposed to be impartial.
The trial counsel represents the government, not the hearing officer
Trial counsel is the lawyer who represents the United States. At an Article 32 hearing the trial counsel appears on behalf of the command and the convening authority, presenting the government’s view of the charges. The trial counsel does not decide anything at the hearing. The findings and recommendations belong to the preliminary hearing officer, who is supposed to remain neutral toward both sides. Trial counsel and defense counsel are the two adversarial parties; the hearing officer sits between them. Keeping these roles separate matters, because an accused who confuses the prosecutor with the decision maker may misjudge how the proceeding works.
Presenting the government’s evidence
One central function of trial counsel is to present the evidence supporting the charges. Under the procedures that took effect with the 2019 edition of the Manual for Courts-Martial, the scope of an Article 32 hearing is narrow. It is limited to determining whether each specification states an offense, whether there is probable cause to believe the accused committed the charged offenses, whether the convening authority has court-martial jurisdiction over the offense and the accused, and what disposition the hearing officer should recommend. Trial counsel organizes and offers documents, reports, and other materials aimed at establishing probable cause on each of those points. Because the rules of evidence largely do not apply at the hearing, trial counsel often relies on written statements and summarized materials rather than the full evidentiary presentation that a trial would require.
Calling and questioning witnesses
Trial counsel may call witnesses who are relevant to the hearing officer’s limited determination. The government may produce those witnesses in person, by telephone, by video teleconference, or by other means that give a reasonable opportunity to question them, so long as the defense has the chance to cross-examine. When the government calls a witness, trial counsel conducts the direct questioning and then the defense may cross-examine. Trial counsel does not control how a witness testifies, and the hearing officer has no power to force a witness to appear in a particular form, but the prosecutor decides which government witnesses to offer in support of the charges.
Responding to defense requests and motions
The defense has its own rights at the hearing, including the right to be represented by detailed military counsel certified under Article 27(b), the right to cross-examine witnesses the government produces, and the right to present matters in defense and mitigation. When the defense raises objections, requests additional witnesses or evidence, or argues that a specification fails to state an offense, trial counsel responds on behalf of the government. The prosecutor may explain why requested witnesses are not reasonably available or why certain evidence is unnecessary to the probable cause question. The hearing officer rules on these disputes, but trial counsel shapes the record by stating the government’s position.
Helping create the record that guides referral
Although the hearing officer writes the report, trial counsel contributes to the record that the convening authority will later review. The hearing officer’s report includes findings on probable cause and jurisdiction and a recommendation on disposition. The convening authority is not bound by that recommendation, but the report and the underlying record inform the decision whether to refer charges to a general court-martial, send them to a lower forum, or resolve them another way. By framing the government’s evidence clearly, trial counsel influences the strength of the record even though the prosecutor casts no vote.
What the trial counsel does not do
It is just as important to know the limits. Trial counsel does not make the probable cause finding, does not decide jurisdiction, and does not write the recommendation. The prosecutor is not a neutral party and is not there to protect the interests of the accused. Trial counsel also does not advise the accused of rights or act as a substitute for defense counsel. An accused who has questions about strategy, about whether to make a statement, or about how to challenge the charges should direct those questions to detailed defense counsel or to retained civilian counsel, never to the prosecutor.
Why this matters for the accused
For a service member facing serious charges, the Article 32 hearing is an early and meaningful opportunity. It is a chance to see part of the government’s evidence, to cross-examine available witnesses, and to begin building a defense well before trial. Recognizing that trial counsel is the adversary, advocating for the command’s position, allows the accused and the defense team to engage the hearing strategically. The prosecutor’s job is to advance the government’s case within the narrow scope the rules allow. The defense team’s job is to test that case and to protect the accused. The hearing officer’s job is to judge, neutrally, whether the case should move forward. Understanding each of these roles, and especially the bounded role of the trial counsel, lets an accused approach the hearing with clear expectations and informed counsel at their side.
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.