The Article 32 preliminary hearing is a required step before serious charges can be referred to a general court-martial under the Uniform Code of Military Justice. Service members and their families often ask whether the hearing must occur at a particular installation, or whether it can be moved or conducted remotely to fit the circumstances of the case. The general answer is that there is meaningful flexibility in how and where the hearing is conducted, but that flexibility is structured by the Rules for Courts-Martial and by the rights the accused holds during the proceeding.
What the Article 32 hearing is and why it exists
Article 32 of the Uniform Code of Military Justice requires a preliminary hearing before criminal charges may be referred to a general court-martial for trial. Rule for Courts-Martial 405 implements that requirement and describes the process in detail. A neutral preliminary hearing officer examines whether there is probable cause to believe an offense was committed and that the accused committed it, considers whether the convening authority has jurisdiction, and recommends a disposition. The hearing also gives the accused an important opportunity to be present, to be represented by counsel, to cross-examine witnesses who appear, and to present matters.
Because the hearing is preliminary rather than a trial, the procedures emphasize practicality. The location and format of the hearing are arranged to allow the parties and the hearing officer to conduct the proceeding efficiently while preserving the accused’s rights.
Flexibility in format and location
The Rules for Courts-Martial accommodate practical realities in how the hearing is held. The hearing is ordinarily arranged through the convening authority and the assigned hearing officer, and the specific venue is selected to serve the needs of the case, including the location of the parties, the hearing officer, witnesses, and supporting facilities. There is no single fixed national location for every preliminary hearing; the proceeding is set where it can be conducted with the participants who need to be involved.
Recent amendments to Rule for Courts-Martial 405 have made the available formats more explicit, particularly with respect to remote participation. The rule has been amended to clarify that preliminary hearings should remain open to the public whenever practicable, whether the hearing is conducted in person or through remote means. The rule also permits the remote presence of the parties and the hearing officer, subject to an important safeguard for the accused: the accused must have defense counsel physically present at the accused’s location, or must otherwise consent to participating by remote means with the opportunity for confidential consultation with defense counsel during the proceeding. This reflects a deliberate balance between operational flexibility and the protection of the accused’s right to the effective assistance of counsel.
Case factors that influence where and how the hearing is held
While the rules do not give a mechanical formula, several practical factors commonly shape the arrangement. The locations of the accused, the assigned counsel, the hearing officer, and the witnesses all bear on whether the hearing is held at a particular installation or conducted with remote participation. Operational demands, deployments, geographic dispersion of participants, and the availability of suitable facilities can all push toward a remote or hybrid format rather than gathering everyone in one room. The need to keep the proceeding open to the public is also considered, since the hearing is presumptively open.
These factors explain why two cases can be handled differently. A case in which all participants are co-located may proceed in person at the installation, while a case involving witnesses and counsel spread across different commands or time zones may use remote means for some or all participants, as long as the safeguards for the accused are met.
The limits on flexibility
Flexibility in location and format does not dilute the accused’s core protections. Whatever the venue or method, the accused retains the right to be present, the right to be represented by counsel, and the right to cross-examine witnesses who appear and to present matters in defense. The amendments permitting remote participation are conditioned on protecting confidential attorney-client consultation, which is why the rule requires either physically present defense counsel at the accused’s location or the accused’s informed consent with assured confidential consultation. Likewise, the preference for keeping the hearing open to the public constrains how the proceeding may be arranged.
In practice, this means that while the government has latitude to set a workable location and format, that latitude cannot be used in a way that undermines the accused’s ability to participate meaningfully, consult privately with counsel, or confront the evidence. If the chosen arrangement compromised those rights, it would become a legitimate subject for objection.
Practical takeaways
For an accused service member, the location of the Article 32 hearing is generally adaptable to the realities of the case, including the possibility of remote participation, but the arrangement must preserve the right to counsel, including confidential consultation, and the presumption of an open proceeding. Defense counsel will pay attention to how the format affects the client’s ability to consult privately, to observe witnesses, and to participate fully, and will object if a proposed arrangement would impair those interests.
A service member facing an Article 32 hearing should discuss the proposed location and format with defense counsel early. Counsel can advise whether a particular arrangement, such as remote participation, serves the client’s interests and what safeguards must be in place. Because the governing rule has evolved to allow remote and hybrid proceedings under specific conditions, the right questions to ask are not only where the hearing will be held but also how the accused’s rights will be protected in that setting.
Bottom line
Yes, the Article 32 preliminary hearing location and format are flexible and respond to case factors such as the location of the parties, counsel, and witnesses, with current rules expressly allowing remote and hybrid proceedings. That flexibility is bounded by the accused’s rights to be present, to confidential consultation with counsel, and to confront witnesses, and by the presumption that the hearing remains open to the public.
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.