Yes, the defense can raise procedural violations during the Article 32 process, but how those objections are handled is shaped by the limited nature of the modern preliminary hearing. The defense is entitled to object to procedural errors, and the preliminary hearing officer must preserve those objections in the report even though the officer is not required to resolve every one of them. Understanding what the defense can raise, and where those objections ultimately get decided, is important to using the process effectively.
The Article 32 Preliminary Hearing in Brief
Since the Military Justice Act of 2016, the Article 32 proceeding is a preliminary hearing with a narrow mandate rather than the broad pretrial investigation it once was. The hearing exists to determine whether each specification states an offense, whether there is probable cause to believe the accused committed the offense, whether the court-martial would have jurisdiction, and to recommend whether the charges should be referred, dismissed, or otherwise disposed of. The preliminary hearing officer, typically a judge advocate, runs the proceeding and issues a non-binding recommendation to the convening authority.
The governing procedures are set out in Rule for Courts-Martial 405. These rules cover matters such as notice to the accused, the right to counsel, the right to be present, the presentation of evidence, and the conduct of the hearing. When the defense believes one of these procedural requirements has been violated, it can say so.
Raising Procedural Objections at the Hearing
The rules expect procedural objections to be made promptly. Any objection should be raised with the preliminary hearing officer as soon as the alleged error is discovered. Raising the objection contemporaneously is important because it puts the issue on the record at the time it arises and prevents the government from later arguing that the defense sat on its rights.
Here is the key feature that surprises many people: the preliminary hearing officer is not required to rule on objections that allege the procedures in Rule for Courts-Martial 405 were not followed. The officer’s job is to make the probable cause and related determinations, not to act as a trial judge resolving procedural disputes. So while the defense can voice the objection, the officer may decline to decide it.
What the officer must do, however, is preserve the objection. If the objecting party requests it, the preliminary hearing officer must include the objection in the report. This means a procedural complaint raised at the hearing does not vanish. It becomes part of the record that goes forward, where it can be addressed by the convening authority and, later, by the military judge.
Why Preserving the Objection Matters
Because the preliminary hearing officer may not rule on a procedural objection, the real forum for resolving many of these issues is the court-martial itself. A military judge has the authority to consider whether a procedural error occurred and what remedy, if any, is warranted. By raising the objection at the hearing and ensuring it is captured in the report, the defense lays the groundwork for a later motion before the military judge.
This sequencing is deliberate. The 2016 reforms streamlined the preliminary hearing so that it would not become a mini-trial bogged down in procedural litigation. The trade-off is that procedural disputes are generally pushed to the trial stage, where a judge with full authority can resolve them. The defense preserves its rights at the hearing and litigates them later.
Examples of Procedural Issues the Defense Might Raise
Procedural objections during the Article 32 process can take many forms. The defense might object that proper notice of the hearing was not given, that the accused was denied the assistance of counsel, that the accused was improperly excluded from part of the proceeding, that the hearing officer exceeded the limited scope of the preliminary hearing, or that the conduct of the hearing departed from the requirements of Rule for Courts-Martial 405 in some other way.
Each of these is a legitimate subject for objection. The defense should articulate the specific rule or right at issue, note when the violation occurred, and request that the objection be recorded in the report.
Limits and Strategy
It is important to keep expectations realistic. Many procedural defects at the Article 32 stage are not, by themselves, grounds to dismiss a case, and the convening authority retains discretion over referral regardless of the hearing officer’s recommendation. The value of raising procedural objections lies in building the record, signaling issues to the defense team for later litigation, and occasionally persuading the convening authority that a charge is flawed enough to warrant a different disposition.
Strategically, the defense weighs which objections are worth raising at the hearing and which are better saved for a motion before the military judge. Some issues benefit from early, on-the-record assertion. Others may be more effectively developed at trial after fuller discovery.
The Bottom Line
The defense can and should raise procedural violations during the Article 32 process when they occur, and should request that those objections be included in the preliminary hearing officer’s report. The officer is not obligated to rule on Rule for Courts-Martial 405 procedural objections, but the act of raising and preserving them keeps the issues alive for the convening authority and, most importantly, for the military judge at trial. Used well, this is a tool for protecting the accused’s rights and setting up later challenges, even within the deliberately narrow confines of the modern preliminary 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.