Evidentiary issues are preserved at the Article 32 preliminary hearing primarily through the act of making timely and specific objections on the record. Although the formal rules of evidence are relaxed at this stage, it is incumbent upon defense counsel to object to any evidence they believe would be inadmissible at a trial. This action ensures the issue is not considered waived and can be litigated later before a military judge.
When the government attempts to introduce a piece of evidence that the defense finds objectionable, such as unreliable hearsay, an unauthenticated document, or improperly obtained evidence, the defense attorney must state their objection and the legal basis for it. For example, counsel might say, “I object to this statement as hearsay,” or “I object to this evidence as it was obtained through an unlawful search.” This objection is recorded by the court reporter and becomes part of the official transcript of the hearing.
The Preliminary Hearing Officer (PHO) will rule on the objection for the purposes of the hearing. The PHO may sustain the objection and disregard the evidence, or they may overrule it and consider the evidence. Regardless of the PHO’s ruling, the key is that the objection has been made and preserved. The PHO’s ruling is not binding on a trial court.
By preserving the objection, the defense creates a record that can be used to support a formal, written motion in limine (a motion to exclude evidence) filed after the case is referred to court-martial. The military judge will then consider the issue anew, applying the strict Military Rules of Evidence. Without a timely objection at the Article 32 hearing, the government might later argue that the defense waived its right to challenge the evidence.