No. A civilian witness cannot be compelled to attend an Article 32 preliminary hearing. This is one of the most misunderstood points in the military justice process, because the rules that govern compulsory process at a later court-martial are very different from the rules that govern the preliminary hearing. Understanding the distinction matters, because the inability to force civilians to appear shapes how both sides prepare for and use an Article 32 hearing.
What an Article 32 hearing is
Since the Military Justice Act of 2016 took effect, the Article 32 proceeding is a preliminary hearing rather than the older, broader investigation. It is governed by Article 32 of the Uniform Code of Military Justice and by Rule for Courts-Martial 405. A preliminary hearing officer, often called the PHO, presides. The hearing has a limited statutory purpose: to determine whether there is probable cause to believe an offense was committed and that the accused committed it, to consider whether the convening authority has jurisdiction, to consider the form of the charges, and to recommend a disposition. It is not a trial and not a mini-trial.
Why civilians cannot be forced to attend
The compulsory process used to bring civilians to a court-martial does not extend to the preliminary hearing. A preliminary hearing officer has no authority to issue a subpoena commanding a civilian to appear and testify at an Article 32 hearing, and a civilian who declines to come cannot be punished for that refusal. The hearing is designed to move efficiently toward a probable cause determination, and Congress deliberately did not arm it with the power to drag reluctant civilians before it.
This does not mean civilian testimony is irrelevant at the preliminary hearing. A civilian witness who is willing to appear may do so voluntarily. In addition, the PHO may consider sworn statements, prior testimony, investigative reports, and other documentary evidence, so the substance of what a civilian would say can still reach the hearing even when the person does not appear in the room.
The pre-referral subpoena for evidence
There is a narrow but important mechanism for obtaining evidence before referral. Under the current rules, if the preliminary hearing officer determines that evidence not under the government’s control is relevant, not cumulative, and necessary, the PHO may direct trial counsel to issue a pre-referral investigative subpoena to produce that evidence, and a military judge may be involved in resolving disputes. It is critical to understand the limit of this tool: it is directed at the production of documents and tangible evidence, not at compelling a civilian to personally attend the hearing and give live testimony.
How this differs from the court-martial itself
The contrast with the trial stage is sharp. Once charges are referred to a court-martial, Rule for Courts-Martial 703 gives the prosecution, the defense, and the court equal opportunity to obtain witnesses, including civilians, through compulsory process. A subpoena under that rule is federal process, and a civilian who ignores a properly served subpoena can face enforcement, including prosecution under Article 47 for failing to comply. In addition, a military judge may issue a warrant of attachment to secure the presence of a civilian witness under specific circumstances. None of these enforcement tools is available at the preliminary hearing stage, which is exactly why the answer changes between Article 32 and trial.
What this means for the accused and the defense
The practical consequences are significant. Because key civilian witnesses, including a complaining witness, often choose not to appear at the Article 32 hearing, the defense frequently cannot cross-examine them at that stage and instead confronts written statements. This limits the preliminary hearing as a discovery and testing tool. Defense counsel should therefore treat the Article 32 hearing realistically, focusing on the probable cause analysis, the legal sufficiency of the charges, and the recommendation to the convening authority, while reserving live confrontation of civilian witnesses for trial, where compulsory process exists.
At the same time, the hearing remains valuable. The PHO’s recommendation can influence whether charges are referred, reduced, or dropped, and any voluntary testimony or documentary evidence developed there can shape the case going forward.
A note on military witnesses
The rule that civilians cannot be compelled to attend an Article 32 hearing should not be confused with the position of military witnesses. Service members are subject to the UCMJ and to military orders, so a military witness can be ordered to appear and testify at a preliminary hearing in a way a civilian cannot. This difference flows directly from the source of authority. The military controls its own members through lawful orders, but it has no comparable power to command a private civilian to appear at a preliminary hearing, which is why the answer turns on the witness’s status. For the defense, this means a military witness whose account matters may be available at the Article 32 stage even when an equally important civilian witness is not.
Conclusion
Civilian witnesses cannot be compelled to attend an Article 32 preliminary hearing. The preliminary hearing officer lacks subpoena power over a civilian’s personal appearance, and a willing civilian’s testimony, or written statements in lieu of appearance, is the only way their account ordinarily reaches the hearing. Full compulsory process over civilians, including subpoenas and warrants of attachment, arrives only at the court-martial stage under Rule for Courts-Martial 703. Anyone navigating an Article 32 proceeding should consult experienced military defense counsel to use the hearing strategically within these limits.
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.