Before serious criminal charges can proceed to a general court-martial, the Uniform Code of Military Justice requires a preliminary hearing under Article 32. This hearing is an important early checkpoint in the military justice process, and service members often want to know how much of a role the defense can play, particularly whether the defense can present its own witnesses. The defense can participate meaningfully in an Article 32 hearing, but the scope of that participation, including the ability to call witnesses, is shaped by reforms that took effect in 2019 and by the limited purpose the hearing now serves.
The Purpose of the Article 32 Hearing
An Article 32 preliminary hearing is conducted by a preliminary hearing officer, who, whenever practicable, should be a certified judge advocate. The hearing is not a trial and is not designed to resolve guilt or innocence. Following amendments made by the National Defense Authorization Act for Fiscal Year 2016 and corresponding changes to Rule for Courts-Martial 405, the hearing that became effective on January 1, 2019, is deliberately limited in scope.
The preliminary hearing officer focuses on a defined set of questions: whether each specification alleges 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 of the case the preliminary hearing officer recommends. This narrowing was a significant change. The older version of Article 32 functioned more like a broad investigation, and the defense often used it as a wide-ranging discovery tool. The current hearing is far more contained, which directly affects how witness testimony is handled.
Defense Participation and the Right to Call Witnesses
The defense is a participant in the Article 32 hearing. The accused has the right to be present, to be represented by counsel, to cross-examine witnesses who appear, and to present matters in defense and mitigation relevant to the limited purpose of the hearing. Within that framework, the defense can seek to call witnesses, but the production of witnesses is governed by rules that reflect the hearing’s narrow focus.
Rule for Courts-Martial 405 provides a process for the defense to request the production of witnesses to testify at the preliminary hearing. The key limitation is relevance to the hearing’s purpose. Because the hearing is confined to issues such as probable cause and jurisdiction, witness testimony is generally limited to matters relevant to those determinations. A witness whose testimony bears on whether probable cause exists, or on the proper disposition of the case, is more likely to be deemed appropriate than a witness offered to litigate the ultimate question of guilt, which is reserved for trial.
There is also a practical distinction between witnesses the government controls and those it does not. The defense may request the production of witnesses and documentary evidence within the government’s control. For evidence or witnesses not under the government’s control, the avenue is different. Such material may be obtained through a pre-referral investigative subpoena issued by appropriate authority, rather than simply ordered up at the hearing. This means the defense should plan early and use the correct mechanism depending on where the witness or evidence resides.
How Witness Testimony Works at the Hearing
When witnesses do appear, the rules govern how their testimony is taken. With the exception of the accused, witnesses are required to testify under oath. The accused occupies a unique position. The accused is not required to testify and retains the privilege against self-incrimination, but the accused is permitted to make an unsworn statement if desired. This allows the accused to provide information to the preliminary hearing officer without subjecting themselves to cross-examination in the way a sworn witness would face.
The defense also has the right to cross-examine witnesses who testify, including the government’s witnesses, to the extent their testimony is relevant to the limited issues before the preliminary hearing officer. Cross-examination at this stage can be valuable for testing the strength of the government’s probable cause showing and for locking in testimony that may be useful later.
Strategic Considerations for the Defense
Because the modern Article 32 hearing is limited, the defense must think strategically about whether and how to use witnesses. The hearing is no longer a broad discovery device, and calling defense witnesses can sometimes reveal the defense’s theory or expose a witness to early questioning without a corresponding benefit. On the other hand, presenting or cross-examining witnesses can be useful for attacking probable cause, highlighting weaknesses in the government’s case, preserving testimony, and supporting a recommendation for a more favorable disposition.
Defense counsel typically weigh several factors: whether the witness is genuinely relevant to the limited purpose of the hearing, whether the witness is within the government’s control or must be reached through an investigative subpoena, what the witness might say under cross-examination, and how the testimony could affect the preliminary hearing officer’s probable cause and disposition recommendations. Because the preliminary hearing officer’s report can influence whether and how the case is referred, even a contained hearing offers meaningful opportunities to shape the proceeding.
The Bottom Line
The defense can present witnesses during an Article 32 hearing, but the right to do so operates within the hearing’s limited modern scope. Witness production is available through Rule for Courts-Martial 405 for witnesses relevant to the hearing’s purpose and within the government’s control, while other witnesses or evidence may require a pre-referral investigative subpoena. Witnesses other than the accused testify under oath, the accused may offer an unsworn statement, and the defense may cross-examine those who appear. Understanding these boundaries allows the defense to make informed, strategic choices about witness testimony at this critical early stage of a court-martial.
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.