One of the first surprises for a service member preparing for an Article 32 preliminary hearing is learning how the government plans to present its case. Rather than calling each accuser and witness to testify in person, the prosecution may rely heavily on written statements, investigative reports, and laboratory results. To someone expecting a trial-like proceeding, this can look improper. It is not. The question of whether the government can introduce hearsay at an Article 32 hearing has a clear answer: yes, it generally can, and the reasons reveal a great deal about what this hearing is and is not.
What Hearsay Is and Why It Usually Matters
Hearsay is, in simple terms, an out-of-court statement offered to prove the truth of what it asserts. A written statement that a witness gave to investigators, used to establish that the events described actually happened, is a classic example. At a court-martial, hearsay is generally inadmissible unless it fits within a recognized exception, because the system prefers live testimony that can be tested by cross-examination and observed for credibility. That preference is one of the foundations of a fair trial.
The Article 32 preliminary hearing, however, is not a trial. It is a screening proceeding that asks a narrower question, and that difference is what changes the treatment of hearsay.
Why Hearsay Is Allowed at the Preliminary Hearing
The Military Rules of Evidence, as a general matter, do not apply at an Article 32 preliminary hearing. Apart from a limited set of rules, the evidentiary restrictions that filter what a court-martial panel may hear are relaxed at this stage. The most consequential result of that relaxation is precisely the treatment of hearsay: because the rule against hearsay does not control the proceeding, the hearing officer may consider out-of-court statements and documents that would face objection at trial.
The reason lies in the limited purpose of the hearing. Under the governing statute and Rule for Courts-Martial 405, the preliminary hearing officer evaluates whether there is probable cause to believe an offense was committed and that the accused committed it, considers whether the court would have jurisdiction, and recommends how the charges should be disposed of. Probable cause is a far lower standard than proof beyond a reasonable doubt. Because the proceeding tests only whether there is enough to move forward, the law permits the government to make that showing through documentary materials rather than requiring it to assemble live testimony from every witness.
How the Government Uses Hearsay in Practice
In a typical Article 32 hearing, the government’s case may consist largely of paper. Sworn statements from the complaining witness and others, summaries prepared by investigators, forensic and laboratory reports, and similar documents can be submitted to the hearing officer to establish probable cause. The prosecution is not obligated to call the complaining witness to testify, and in many hearings that witness does not appear at all. The hearing officer is permitted to rely on these materials in reaching a recommendation.
This documentary approach was reinforced by reforms that reshaped the Article 32 process. Those reforms converted what had once been a broader investigation into a narrower probable cause hearing, and one of their effects was to reduce the expectation that witnesses, particularly complaining witnesses in sexual assault cases, would be subjected to live examination at this preliminary stage. The practical consequence is a more paper-driven proceeding in which hearsay is the norm rather than the exception.
What Limits Remain
The relaxation of the hearsay rule does not mean that nothing constrains the proceeding. A narrow group of protections continues to apply even at the Article 32 hearing. The rules of privilege remain in force, so privileged communications retain their protection. Rules governing statements obtained through interrogation continue to apply. And the rape-shield protection under Military Rule of Evidence 412, which limits evidence of an alleged victim’s other sexual behavior or predisposition, applies at the hearing as well. These carve-outs reflect interests important enough that the law preserves them even where the general evidentiary rules are set aside. They do not, however, restore the rule against hearsay.
What This Means for the Accused
For the defense, the admissibility of hearsay reshapes strategy. Counsel cannot count on cross-examining every accuser or witness at the preliminary hearing, because many will never appear; the government can rest on their written statements. Nor can the defense expect to keep damaging material out through hearsay objections, since those objections do not apply. The accused retains the right to cross-examine witnesses who do testify and to present relevant matter on the limited issues before the hearing officer, but the central reality is that the government’s probable cause showing can be built on documents.
Experienced defense counsel therefore use the hearing for what it can offer: a preview of the government’s case, an opportunity to probe any witness who does appear, and a chance to identify weaknesses, inconsistencies, and gaps in the documentary record. The hearing also generates a record that can be useful later, including for impeaching witnesses at trial if their later testimony differs from their earlier statements.
A Crucial Caution About Trial
It is essential not to confuse the two stages. The fact that the hearing officer relied on hearsay to find probable cause says nothing about whether that same evidence can be used at the court-martial. At trial, the full Military Rules of Evidence apply, and the government must satisfy the hearsay rule and its exceptions, along with authentication and other requirements, to admit each piece of evidence. A written statement that helped establish probable cause at the Article 32 hearing must be proven through admissible means at trial, typically through the live testimony of the person who made it. The relaxed standard belongs to the preliminary stage alone.
The Bottom Line
The government can introduce hearsay at an Article 32 hearing. Because the Military Rules of Evidence generally do not apply at this probable cause screening, the prosecution may rely on written statements, investigative reports, and other out-of-court material to make its showing, and it need not call every witness to testify. A narrow set of protections survives, including the rules of privilege, the rules on statements obtained through interrogation, and the rape-shield rule, but the rule against hearsay is not among them. None of this carries over to trial, where the full evidentiary rules apply and hearsay must clear the usual bars. Understanding this is key to setting realistic expectations and using the preliminary hearing effectively.
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.