Military Lawyers

Not in the way the question might suggest. An Article 32 preliminary hearing officer has no authority to dismiss charges, so the defense cannot win a dismissal from the hearing officer the moment the hearing ends. What the defense can do is use the conclusion of the hearing to press for a favorable disposition through the next decision-maker in the process, the convening authority, and then, if the case is referred to a court-martial, to file motions to dismiss before the military judge who has the power to grant them. In other words, the path to dismissal runs through the convening authority’s referral decision and the trial court, not through a motion ruled on by the preliminary hearing officer.

Why the hearing officer cannot dismiss

The Article 32 hearing is a screening proceeding, not a tribunal that adjudicates the case. The preliminary hearing officer’s job is limited to determining whether the specifications allege offenses under the Uniform Code of Military Justice, whether there is probable cause to believe the accused committed them, whether the convening authority has jurisdiction, and what disposition to recommend. The hearing officer then submits a report with those determinations and a recommendation. Crucially, the hearing officer recommends; the hearing officer does not order. The decision whether to dismiss, refer, or otherwise dispose of the charges belongs to the convening authority, not to the hearing officer. So a defense request that the charges be dropped is, at the hearing stage, properly understood as advocacy directed at the hearing officer’s recommendation and, ultimately, at the convening authority’s decision, rather than a motion the hearing officer can grant outright.

Using the hearing to seek a no-probable-cause recommendation

The most direct way the defense influences the outcome right after the hearing is by persuading the hearing officer to recommend against referral, ideally by finding that probable cause is lacking or that the charges should not proceed. A hearing officer’s report that concludes there is no probable cause, or that recommends dismissal or a lesser disposition, carries weight with the convening authority. While it does not compel any particular result, it is an important input, and convening authorities give the hearing officer’s recommendation serious consideration. Effective defense advocacy at and immediately after the hearing therefore focuses on the report, including any matters the defense is entitled to submit for the hearing officer’s consideration, with the goal of shaping a recommendation that …

A military judge does not sit as an appellate body over the preliminary hearing officer (PHO), so the judge does not “overrule” a PHO recommendation in the way an appeals court reverses a lower court. The PHO’s recommendation is advisory and runs to the convening authority, not to the judge. What the military judge can do is rule on motions challenging the preliminary hearing and the charges that were referred, and through those rulings the judge can grant relief that effectively undoes the consequences of a flawed process. The distinction matters, because it tells the defense where to direct its arguments and what relief is realistically available.

The PHO recommendation is not a ruling

Under Rule for Courts-Martial (RCM) 405, the Article 32 preliminary hearing produces a report containing the PHO’s conclusions on whether each specification states an offense, whether probable cause exists, whether the court-martial has jurisdiction, and what disposition the PHO recommends. That report goes to the convening authority. It is advice, not an order.

Because the recommendation is advisory, there is nothing for the military judge to affirm or reverse. The convening authority is the official who decides whether to follow the PHO’s recommendation when referring charges under RCM 601. By the time a case reaches the military judge, the charges have already been referred. The judge’s role begins with the referred charges, not with second-guessing the PHO’s advice as such.

What the military judge can actually do

Although the judge does not overrule the recommendation, the judge has substantial authority over the charges and the integrity of the preliminary hearing process. A defect in the preliminary hearing, or a problem with the referral that the PHO’s recommendation should have flagged, can be raised by motion. Under RCM 905(b)(1), an objection based on a defect, other than a jurisdictional defect, in the preferral, forwarding, or referral of charges, or in the preliminary hearing itself, must be raised before entry of pleas. If the defense does not raise it in time, it may be forfeited, although the judge can grant relief from forfeiture for good cause.

When such a motion is properly raised, the military judge can order appropriate relief. Depending on the defect, that might mean ordering a new or supplemental preliminary hearing to cure the problem, ordering that the hearing be conducted properly, or otherwise correcting the process. In substance, this can override the practical effect …

Service members who learn that their rights were violated during questioning sometimes hope that the violation will collapse the government’s entire case, wiping out the investigation and forcing a dismissal. Article 31 of the Uniform Code of Military Justice does provide a meaningful remedy, but the scope of that remedy is narrower and more nuanced than the idea of suppressing an entire investigation suggests. Understanding what Article 31 actually excludes, and what it generally does not, is essential to setting realistic expectations.

What Article 31 Protects and What It Excludes

Article 31, codified at 10 U.S.C. 831, protects service members against compelled self-incrimination. Subsection (b) requires that before interrogating or requesting a statement from a person suspected or accused of an offense, the questioner must inform the person of the nature of the accusation, advise that the person does not have to make any statement regarding the offense, and warn that any statement may be used as evidence against the person in a trial by court-martial. Subsection (d) supplies the remedy. It states that no statement obtained from any person in violation of the article, or through coercion, unlawful influence, or unlawful inducement, may be received in evidence against the person at a court-martial.

The text is important. The statutory exclusion is aimed at the statement itself. When Article 31 is violated, the direct consequence is that the improperly obtained statement is generally inadmissible against the accused. The remedy is exclusion of evidence, not nullification of the investigation as a whole.

The Remedy Is Targeted, Not Total

An investigation typically generates many strands of evidence, including witness accounts, physical items, documents, forensic results, and statements. An Article 31 violation tied to a particular interrogation reaches the tainted statement. It does not automatically erase every other piece of evidence the government has gathered. Evidence obtained independently of the improper questioning ordinarily remains available. For that reason, the realistic effect of a successful Article 31 challenge is suppression of the affected statement and, potentially, evidence shown to flow from it, rather than the suppression of an entire investigation.

This distinction matters because the strength of the government’s remaining evidence often determines whether a suppressed statement is fatal to the case. If the statement was the linchpin, its exclusion can be devastating to the prosecution and may lead to dismissal or a far weaker case. If the government has substantial independent evidence, the …

A common misconception is that every military offense, from a minor disciplinary infraction to a serious felony-level charge, triggers an Article 32 hearing. In reality, the Article 32 preliminary hearing is tied to a specific point in the court-martial process and applies only to a particular category of cases. Understanding which offenses lead to an Article 32 hearing, and which do not, helps service members anticipate how their case will be handled.

The Hearing Is Tied to the Forum, Not the Offense Label

The cleanest way to understand when an Article 32 hearing applies is to focus on the type of court-martial involved rather than the name of the offense. Under Article 32 of the Uniform Code of Military Justice, codified at 10 U.S.C. 832, a preliminary hearing must be held before charges and specifications may be referred to a general court-martial. The general court-martial is the most serious of the three court-martial forums and can impose the most severe authorized punishments. The Article 32 hearing functions as the gateway to that forum.

This means the trigger is not whether an offense is inherently grave in the abstract, but whether the command intends to prosecute it at a general court-martial. Many of the most serious charges in the military justice system do proceed to general court-martial, which is why Article 32 hearings are associated with serious offenses. But the formal requirement is keyed to the forum.

Special and Summary Courts-Martial Do Not Require an Article 32 Hearing

Article 32 hearings are not used for special courts-martial or summary courts-martial. A special court-martial handles intermediate-level offenses and carries more limited punishment authority than a general court-martial. A summary court-martial addresses minor misconduct and offers the most limited punishment authority of the three. Neither of these forums requires a preliminary hearing before charges are referred. As a result, a service member facing a special or summary court-martial will not go through an Article 32 proceeding for those charges.

This is one reason the answer to whether Article 32 hearings are used in all types of offenses is clearly no. Offenses routed to special or summary courts-martial, including many lower-level and minor offenses, bypass the Article 32 step entirely.

Nonjudicial Punishment and Administrative Actions Are Outside the Process

Many alleged offenses are never sent to any court-martial at all. Commanders frequently handle misconduct through nonjudicial punishment under Article 15 or through administrative measures …

Service members sometimes group Article 31 and Article 138 together because both appear in the Uniform Code of Military Justice and both relate to protecting individual rights. In practice they serve very different functions. Article 31 is a self-incrimination protection that operates inside the criminal process, while Article 138 is a grievance mechanism for challenging a wrong committed by a commanding officer. Knowing which one applies to a given problem is the first step toward seeking the right remedy.

Article 31: A Self-Incrimination Protection in the Criminal Process

Article 31, codified at 10 U.S.C. 831, safeguards service members against compelled self-incrimination. Subsection (a) prohibits compelling any person to incriminate themselves. Subsection (b) requires that before interrogating or requesting a statement from a suspect or accused, the questioner inform the person of the nature of the accusation, advise that the person need not make any statement regarding the offense, and warn that any statement may be used as evidence against the person at a court-martial. Subsection (c) bars compelling a person to make a statement or produce evidence that is not material and may tend to degrade them. Subsection (d) provides the remedy by stating that a statement obtained in violation of the article, or through coercion, unlawful influence, or unlawful inducement, may not be received in evidence against the person at a court-martial.

The defining features of Article 31 are its setting and its remedy. It applies during questioning and within the criminal justice process, and it is enforced primarily by excluding improperly obtained statements. When an Article 31 violation occurs, the typical response is a motion to suppress the statement in a court-martial or, where relevant, an administrative proceeding. The protection is about the integrity of evidence gathered against the individual.

Article 138: A Complaint of Wrongs Against a Commanding Officer

Article 138, codified at 10 U.S.C. 938, serves an entirely different purpose. It gives a service member who believes they have been wronged by their commanding officer a formal avenue to seek redress. The provision allows a member who, after due application to the commanding officer, is refused redress to complain to a superior commissioned officer. That officer forwards the complaint to the officer exercising general court-martial jurisdiction over the commander complained against, who must examine the complaint and take proper measures to redress the wrong.

The procedure generally has two stages. First, the member ordinarily submits a …

When a court-martial conviction is appealed, the question of what the appellate court can actually review becomes central. Service members and their counsel often ask whether the record of an Article 32 preliminary hearing, the proceeding that occurs before a general court-martial, reaches the appellate courts. The answer is generally yes. The materials generated at an Article 32 hearing are documented, forwarded up the chain, and ordinarily become part of the larger record that appellate courts may examine. Understanding how that works, and its limits, helps explain when an error at the preliminary hearing can support relief on appeal.

What an Article 32 hearing produces

Under Article 32 of the Uniform Code of Military Justice (10 U.S.C. § 832) and the Rules for Courts-Martial, the preliminary hearing officer must prepare a written report after the hearing. That report states the officer’s reasoning and conclusions on probable cause, jurisdiction, and the recommended disposition, and it summarizes the relevant witness testimony and documentary evidence presented. The report is submitted to the convening authority, the commander who decides whether to refer charges to a general court-martial.

Since the reforms that took effect on January 1, 2019, the report must be accompanied by a recording of the preliminary hearing. The hearing is recorded, and that recording, along with the exhibits and any stipulated testimony, forms the documentary footprint of the proceeding. The written report typically summarizes testimony rather than providing a full verbatim transcript, but the recording captures what actually occurred. These materials are preserved precisely because they may matter later.

How those records reach the appellate level

After trial, the government assembles the record of trial. The Article 32 report, the recording, and the related exhibits are part of the allied papers and supporting documentation that accompany the case as it moves through post-trial processing and into appellate review. When a case is reviewed by a service Court of Criminal Appeals, such as the Army, Navy-Marine Corps, Air Force, or Coast Guard court, and then potentially by the Court of Appeals for the Armed Forces, those courts have access to the assembled record, which includes the preliminary hearing materials. In short, the appellate courts can see what happened at the Article 32 stage because that information travels with the case.

This availability is not merely theoretical. Appellate courts have addressed questions arising from Article 32 proceedings, including challenges based on the hearing record, …

Article 31 of the Uniform Code of Military Justice gives service members a protection against compelled self-incrimination that, in important respects, is broader than its civilian counterpart. When that protection is violated, the consequences can reach beyond the improper statement itself. The “fruit of the poisonous tree” doctrine is the principle that explains how far those consequences extend, reaching evidence that the government later discovered because of the original violation.

What Article 31 requires

Article 31 has two features that matter here. Article 31(b) requires that before questioning a suspect, the person asking must inform the suspect of the nature of the accusation, advise the suspect of the right to remain silent, and warn that any statement may be used as evidence in a trial by court-martial. Notably, this warning requirement applies in the military even when the questioning is not custodial, which is a broader trigger than the civilian Miranda rule. Article 31(d) is the enforcement mechanism: it provides that a statement obtained in violation of the article, or through the use of coercion, unlawful influence, or unlawful inducement, may not be received in evidence against the accused.

So the statute itself bars the improper statement. The fruit of the poisonous tree doctrine addresses the next question: what about evidence the government would never have found except for that improper statement?

The metaphor explained

The doctrine borrows a simple image. If the initial illegality is the “poisonous tree,” then evidence derived from it is the “fruit,” and that fruit is tainted by the same poison. The exclusionary principle therefore reaches not only the unlawfully obtained statement but also the secondary evidence that flowed from it. In an Article 31 setting, suppose a service member is interrogated without the required warning and, in response, reveals the location of physical evidence or names a witness. The statement is inadmissible under Article 31(d). The doctrine asks whether the physical evidence or the witness’s testimony should also be suppressed because the government learned of it only through the tainted statement.

How the analysis works

Courts do not automatically exclude everything that follows an unlawful statement. The central question is causation and attenuation: did the government obtain the later evidence by exploiting the original violation, or by means sufficiently independent that the taint has dissipated. Three well-established limitations narrow the doctrine’s reach.

The first is the independent source. If the government can show it …

In a court-martial for sexual offenses under Article 120 of the Uniform Code of Military Justice (10 U.S.C. § 920), the government sometimes wants to tell the panel about an accused’s history, including past administrative reprimands such as a letter of reprimand, counseling, or other adverse paperwork. Whether and when that history can come in is governed by a layered set of evidentiary rules. Administrative reprimands are not freely admissible. They are subject to the same character, relevance, and fairness limits that apply to any prior bad act, and they are treated differently depending on the phase of the trial. This article explains the framework.

Administrative reprimands are not criminal convictions

A letter of reprimand or similar administrative action is not a criminal conviction and does not result from a court-martial. It is a command tool used to document and correct conduct. Because it is administrative, it cannot be used as if it were a prior conviction, and it does not carry the evidentiary weight of one. Whatever underlying conduct it describes must satisfy the rules of evidence on its own terms before a panel can hear about it during the findings phase of a trial.

The findings phase: character evidence limits

The central rule during findings is that the prosecution may not introduce evidence of the accused’s character or prior bad acts simply to argue that he has a propensity to commit offenses and therefore likely committed the charged one. Military Rule of Evidence 404(b) prohibits using evidence of other acts to prove character in order to show conduct in conformity with that character. The same rule, however, allows other-act evidence for a permissible purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. So if a past reprimand documents conduct that is genuinely relevant to a contested non-propensity issue in the Article 120 case, the government may seek to admit the underlying facts for that limited purpose, not the reprimand as a label.

Even when offered for a proper purpose, the evidence must clear additional hurdles. Under Military Rule of Evidence 403, the military judge must weigh the probative value against the danger of unfair prejudice, confusion, and waste of time, and may exclude it if the prejudice substantially outweighs its value. Reprimands describing conduct unrelated to the charged sexual offense are especially vulnerable to exclusion because they invite the panel to punish …

A legal error at the preliminary hearing stage of a court-martial can sometimes support an appeal, but it is one of the harder grounds to win on. The military justice system treats the pretrial hearing as a screening step rather than a mini-trial, and the law expressly tells courts that mistakes there are usually cured by the full trial that follows. Whether an error becomes a viable appellate issue depends on what kind of hearing it was, whether the defense preserved the objection, and above all whether the error actually prejudiced the outcome.

What hearing is at issue

In a general court-martial, the principal pretrial proceeding is the Article 32 preliminary hearing, codified at 10 U.S.C. 832. A neutral preliminary hearing officer reviews the charges to determine whether there is probable cause, whether the convening authority has jurisdiction, and whether the charges are in proper form, and makes a disposition recommendation. The defense has rights at this hearing, including notice, the ability to cross-examine available witnesses on matters relevant to the limited purpose, and the chance to present evidence. Errors can occur, such as improperly limiting cross-examination, excluding a relevant witness, or misapplying the rules during the hearing.

The statute discounts hearing errors

The single most important rule is built into Article 32 itself. The statute provides that its requirements are binding on those administering the code, but that failure to follow them does not constitute jurisdictional error. In plain terms, a flawed or even improperly skipped preliminary hearing does not by itself void the court-martial that follows. The proceeding remains valid, and the defect is treated as a non-jurisdictional procedural problem rather than a fatal one.

This reflects a settled view in military law that the protections of the preliminary hearing are largely superseded once the case reaches trial, where the accused receives full confrontation, discovery, and evidentiary rights. Many shortcomings at the hearing are simply overtaken by the more robust process at trial.

The prejudice requirement controls

Even a genuine legal error at the hearing leads to relief only if it harmed the accused. Article 59(a) of the UCMJ provides that a finding or sentence may not be held incorrect on the basis of an error of law unless the error materially prejudices the substantial rights of the accused. On appeal, the Courts of Criminal Appeals and the Court of Appeals for the Armed Forces test Article 32 …

When a service member is convicted of an offense under Article 120 of the Uniform Code of Military Justice (rape, sexual assault, aggravated sexual contact, or abusive sexual contact), the court-martial moves into a separate sentencing phase. During that phase, the government often seeks to present the accused’s history of prior misconduct. A recurring question is whether a conviction handed down by a foreign court can be placed before the sentencing authority. The answer turns on a specific rule for courts-martial and on the difference between two distinct categories of sentencing evidence.

The Rule That Governs Prior Convictions at Sentencing

Presentencing procedure in courts-martial is governed by Rule for Courts-Martial 1001. Under R.C.M. 1001(b)(3), trial counsel may introduce evidence of prior military or civilian convictions of the accused. This is the provision that prosecutors typically rely on when they want the members or the military judge to learn that the accused has been convicted of crimes before.

The rule, however, contains a precise definition of what counts as a qualifying “conviction.” For a civilian case, a conviction generally includes any disposition following an initial judicial determination or assumption of guilt, such as a guilty plea, a verdict at trial, or a plea of nolo contendere. But the rule also lists categories that are expressly excluded from this definition.

Foreign Convictions Are Excluded From R.C.M. 1001(b)(3)

Among the dispositions that do not qualify as a “conviction” for purposes of R.C.M. 1001(b)(3) are several specific categories, and foreign convictions are one of them. The same exclusion covers diversions from the judicial process without a finding or admission of guilt, expunged convictions, juvenile adjudications, minor traffic violations, tribal court convictions, and convictions that were reversed, vacated, invalidated, or pardoned because of legal error or newly discovered evidence exonerating the accused.

The practical effect is that a foreign court’s judgment cannot be offered through the prior-conviction channel of R.C.M. 1001(b)(3). If trial counsel attempts to introduce a conviction from a court of another nation simply by labeling it a prior conviction, the defense has a strong basis to object, and the military judge should sustain that objection under the plain terms of the rule.

Why the Exclusion Exists

The exclusion reflects sound caution. Foreign criminal proceedings vary widely in their procedural protections. Some lack the safeguards an American court considers fundamental, such as the right to counsel, protection against compelled self-incrimination, a meaningful opportunity …