By the time a military case reaches the motions stage before a military judge, the issues that get litigated have usually been identified much earlier. The Article 32 preliminary hearing is one of the most important sources of that early identification. Although the preliminary hearing officer does not decide motions, the hearing generates the information, testimony, and procedural record that the defense uses to draft, support, and prioritize the pretrial motions it will later file. Understanding that connection turns the Article 32 from a formality into a strategic tool.
The hearing’s place before motions practice
Under Article 32 of the UCMJ and Rule for Courts-Martial (RCM) 405, the preliminary hearing occurs before referral to a general court-martial and focuses on probable cause, jurisdiction, whether the charges state an offense, and the hearing officer’s recommended disposition. Pretrial motions, by contrast, are litigated after referral before the military judge, who applies the full Military Rules of Evidence and the Rules for Courts-Martial. The Article 32 therefore sits upstream of motions practice, which is exactly why it is so useful for shaping it. What counsel learns and records at the hearing becomes the raw material for the motions that follow.
Spotting jurisdictional and charging defects
Because the hearing officer must consider whether the convening authority has court-martial jurisdiction and whether the charges actually allege an offense, the Article 32 is a natural place to surface motions that attack jurisdiction and charging. If the facts developed at the hearing show a gap in jurisdiction, a charge that fails to state an offense, a problem with multiplicity, or an unreasonable multiplication of charges, the defense flags those issues early. A hearing officer’s report that questions probable cause on a charge, or that recommends dismissal or reduction, hands the defense a documented basis for a later motion to dismiss or for appropriate relief.
Capturing testimony that supports suppression and in limine motions
The most powerful contribution the Article 32 makes to motions practice is testimonial. When investigators or witnesses testify, counsel can develop the facts that a suppression motion depends on: how a statement was obtained, whether rights warnings under Article 31 of the UCMJ were given, how a search was conducted, and how evidence was collected and handled. Although the hearing officer applies a relaxed evidentiary approach and will not suppress anything, the sworn testimony elicited at the hearing freezes those facts while memories are fresh. That record later anchors a motion to suppress under MRE 311 through 317, a motion in limine to exclude prejudicial evidence under MRE 403, or a challenge to authentication under MRE 901. Equally important, inconsistencies captured at the hearing become impeachment material that strengthens the defense’s position when the motion is argued.
Preserving procedural objections in the report
The Article 32 also shapes a particular category of motions: those built on procedural defects in the hearing itself. Under RCM 405, the preliminary hearing officer is not required to rule on objections that the procedures of RCM 405 were not followed, but the officer must include such objections in the report if the objecting party requests it, and the officer may allow written objections to be submitted after the hearing closes. By making and recording these objections, the defense preserves them for a later motion before the military judge attacking the adequacy of the preliminary hearing. An objection that is documented in the report is preserved; one that is never raised may be forfeited.
Prioritizing and sequencing the motions
Beyond identifying issues, the Article 32 helps the defense decide which motions are worth filing and in what order. The hearing reveals the strength of the government’s evidence and the credibility of its witnesses. That assessment tells counsel where the case is genuinely vulnerable, so limited time and credibility before the military judge are spent on motions that matter rather than on weak filings. A motion supported by testimony already on the record is far more persuasive than one based on speculation, so the hearing effectively separates the motions that have factual support from those that do not.
Working within the post-2019 limits
It is important to be realistic about the hearing’s narrowed scope. The 2019 reforms removed broad discovery as a purpose of the Article 32 and refocused it on probable cause, so the government is not obligated to lay out its entire case or to produce every witness. The defense therefore approaches the hearing surgically, calling the witnesses and asking the questions most likely to develop facts for the specific motions it anticipates. The hearing remains a valuable source of motion-shaping information, but counsel must use it deliberately rather than expecting it to function as open discovery.
Conclusion
The Article 32 hearing helps shape pretrial motions by doing the early work that motions practice depends on. It surfaces jurisdictional and charging defects tied to the hearing officer’s required findings, it captures sworn testimony that later supports suppression, in limine, and authentication motions before the military judge, it preserves procedural objections in the hearing officer’s report under RCM 405, and it gives the defense the information needed to prioritize and sequence its filings. The preliminary hearing officer never rules on these motions, but the record built at the Article 32 is what makes them credible and well-founded when they are finally argued after referral.
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.