Military Lawyers

The preliminary hearing officer, or PHO, plays a defined role in a general court-martial. Under Article 32 of the Uniform Code of Military Justice (UCMJ) and Rule for Courts-Martial (RCM) 405, the PHO presides over the preliminary hearing, considers the evidence the parties present, and submits a written report with findings and recommendations to the convening authority. A question that sometimes arises is whether that same officer later takes the witness stand at the court-martial to testify about the hearing or the contents of the report. As a general matter, the PHO does not become a trial witness who narrates the report, and there are good structural reasons for that.

The PHO’s job ends with the report

The Article 32 preliminary hearing is a pretrial proceeding with a limited purpose. RCM 405 directs the PHO to determine whether there is probable cause to believe an offense was committed and that the accused committed it, to consider whether the convening authority has court-martial jurisdiction, to consider the form of the charges, and to recommend a disposition. The PHO must remain impartial and may not become an advocate for either side. The product of all this is the report, which summarizes the relevant testimony and documentary evidence and sets out the officer’s reasoning, conclusions, and recommendations for each specification.

Once that report is delivered, the PHO’s function is essentially complete. The convening authority, advised by the staff judge advocate, decides how to dispose of the charges. Nothing in the design of the process contemplates the PHO returning later to testify about how the hearing went or what the report means.

Why the PHO is not a trial witness about the report

Several principles explain why the PHO does not ordinarily testify based on the report at the court-martial.

First, the report is not evidence of guilt. The preliminary hearing tests probable cause and advises the disposition decision. It does not establish the elements of an offense for the panel. The court-martial is a separate proceeding in which guilt is decided on evidence presented anew, under the Military Rules of Evidence, before the members or the military judge. The PHO’s probable-cause conclusion has no place in that determination, so there is nothing for the PHO to relate to the factfinder.

Second, allowing the PHO to testify about the report would invite hearsay and improper opinion. The report summarizes what others said and offers …

An Article 32 preliminary hearing is the proceeding under the Uniform Code of Military Justice that examines charges before they can be referred to a general court-martial. In some cases the evidence touches on classified information or other sensitive material, for example intelligence sources, national security matters, or information whose disclosure could cause harm. A common question is whether an Article 32 hearing can deal with that kind of material at all, and if so, how. The answer is that yes, Article 32 hearings can involve classified and sensitive information, and the rules provide specific mechanisms to handle it while protecting both the security interest and the rights of the accused.

The rules of evidence at an Article 32 hearing are limited but include key privileges

At an Article 32 preliminary hearing, most of the Military Rules of Evidence do not apply. There are important exceptions, however, including the privileges in Section V of the Military Rules of Evidence. Among those is Military Rule of Evidence 505, the privilege that governs classified information. Specific portions of Rule 505 apply at the preliminary hearing. This means that even in a proceeding where the ordinary evidentiary rules are relaxed, the protections governing classified information remain in force. The hearing does not become a free zone in which classified material can be disclosed without regard to the rules designed to safeguard it.

How classified information triggers protective procedures

Military Rule of Evidence 505 sets up procedures that come into play when classified information is at stake, including when the defense seeks classified information from the government or when the defense reasonably expects to disclose classified information during a proceeding. These procedures are designed to let the proceeding go forward while controlling how, and to whom, classified material is revealed. The government has a recognized interest in preventing unauthorized disclosure of classified information, and the rule provides the structure for asserting that interest. At the same time, the procedures are meant to ensure that the hearing can still serve its purpose of testing the charges.

Closing or restricting the hearing to protect sensitive material

Article 32 hearings are ordinarily open, but there are recognized circumstances in which closure or restriction may be necessary. Protecting classified information is one such circumstance, alongside others such as protecting witness safety or privacy and preventing psychological harm to witnesses. When classified or sensitive material must be addressed, the …

No. An alleged victim is not required to participate in an Article 32 preliminary hearing. This is one of the most consequential features of modern military pretrial practice, and it is the product of deliberate statutory reform. A named victim may decline to testify, and that choice does not stall the hearing or count against the government’s ability to proceed. Understanding how this works, and what it means for both sides, is essential to understanding what an Article 32 hearing actually looks like today.

What changed and why

Before the reforms of the mid-2010s, the Article 32 proceeding was an investigation, and alleged victims were routinely called to testify and could be subjected to extensive cross-examination at this early stage. Congress changed that through the National Defense Authorization Acts for fiscal years 2014 and 2015, which rewrote Article 32 of the Uniform Code of Military Justice. The proceeding was renamed a preliminary hearing, its purpose was narrowed, and the hearing officer’s broad investigative role was stripped down to a focused screening function.

Part of that overhaul was a protection for alleged victims. Congress concluded that requiring victims to relive the events and submit to early cross-examination, before any decision to refer charges, was both unnecessary to the limited purpose of the hearing and harmful. The reforms therefore gave the alleged victim a right not to participate.

The right to decline

Article 32 and its implementing rule in Rule for Courts-Martial (RCM) 405 provide that an alleged victim may not be required to testify at the preliminary hearing. For an alleged victim of a sexual offense, the right to decline is treated as essentially absolute. A victim who declines to testify is deemed not available for purposes of the hearing, which means the preliminary hearing officer simply proceeds without that testimony rather than treating the absence as a problem to be solved.

This is not a privilege the victim has to justify. The victim need not show good cause, fear, or hardship. The choice is the victim’s to make, and the defense cannot compel attendance. A defense request for the victim to appear is, in practical effect, a request directed to the victim, who is free to say no.

How the hearing proceeds without the victim

A natural question is how the preliminary hearing officer can assess probable cause if the central witness does not testify. The answer lies in the …

When a service member faces a serious charge such as an Article 120 sexual offense under the Uniform Code of Military Justice, the Article 32 preliminary hearing is often the first formal opportunity to push back before the case reaches a general court-martial. A natural question is whether that hearing allows the accused to introduce mitigation evidence, meaning evidence that explains, lessens, or provides context that argues against full prosecution. The answer is yes, but only within the narrow scope that the hearing is designed to serve, and there is an important parallel avenue that often does more work.

The limited scope of the preliminary hearing

The Article 32 preliminary hearing is limited in both purpose and scope. The preliminary hearing officer is tasked with determining whether each specification alleges an offense under the code, whether the command has jurisdiction over the accused and the offense, whether there is probable cause to believe the accused committed the charged offense, and what disposition to recommend. The hearing is not a trial, and it is not meant to perfect the government’s case or to serve as a vehicle for full discovery or trial-level confrontation.

This limited scope shapes what mitigation evidence is admissible. The accused has the right to present evidence on the accused’s own behalf, but that evidence must be relevant to the specific, limited purposes of the hearing. In other words, mitigation that bears on probable cause, on the proper characterization of the charges, or on the disposition recommendation falls within what the hearing officer may consider. Broad mitigation aimed at sentencing-style leniency, untethered from the hearing’s narrow questions, does not fit neatly within the hearing itself.

Mitigation that fits the hearing’s purpose

Because the hearing officer makes a recommendation on disposition, there is meaningful room for the accused to offer information relevant to that recommendation. Evidence that undercuts probable cause, that shows a charge is overstated or misframed, or that bears on whether the matter should proceed to a general court-martial at all can be presented and weighed. The accused may also point to weaknesses in the government’s showing. The key requirement is relevance to the limited purposes the hearing is authorized to address.

The broader avenue under the rules

Where the hearing itself is too narrow, the Rules for Courts-Martial provide a separate and often more useful channel. Under the preliminary hearing rules, the accused, the government, and …

A conviction under Article 120 of the Uniform Code of Military Justice is not necessarily the end of the road. The military justice system provides a structured appellate process that can review the case for legal error and, at the first level of appeal, for the sufficiency of the evidence as well. Understanding the sequence helps a convicted service member know what review is available, what each court can do, and how the steps fit together. This article walks through the process after an Article 120 conviction.

Entry of Judgment and Post-Trial Steps

After findings and sentence, the case moves through post-trial processing before formal appellate review begins. This stage includes the preparation of the record, post-trial submissions in which the accused can ask for relief, and action that results in the entry of judgment. The post-trial submissions are an early opportunity to raise issues and request clemency, and they precede the appellate stages described below.

The First Level: The Court of Criminal Appeals

The first level of appellate review is the service Court of Criminal Appeals, which exists for the Army, the Navy and Marine Corps, the Air Force, and the Coast Guard. This review is governed by Article 66 of the UCMJ.

What makes the Court of Criminal Appeals distinctive is the breadth of its review. Unlike most appellate courts, it may review questions of both law and fact. It can weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, and it may affirm only the findings and the sentence, or the parts of them, that it finds correct in law and fact. This means the court can set aside a conviction it concludes is factually insufficient and can reduce a sentence it finds inappropriate.

Historically, this level of review was tied to the severity of the sentence, with mandatory review for cases involving sentences such as a punitive discharge or confinement of a certain length. Reforms have expanded access to appellate review beyond those traditional thresholds, broadening the categories of cases eligible for review. A service member convicted under Article 120 will typically have access to this first level of review given the serious sentences these cases carry.

The Second Level: The Court of Appeals for the Armed Forces

After the Court of Criminal Appeals decides a case, the next step is the United States Court of Appeals for the Armed Forces, …

An Article 32 preliminary hearing is presumptively open to the public, and that presumption is strong. The accused has an interest in a public hearing, the press and the public have an interest in observing military justice, and openness itself promotes accountability. So the short answer is that a hearing can be closed, but only for specific reasons and only after the preliminary hearing officer makes a careful, on-the-record decision rather than closing the doors as a matter of convenience.

The default is an open hearing

Rule for Courts-Martial (RCM) 405 governs the preliminary hearing required by Article 32 of the Uniform Code of Military Justice before charges may be referred to a general court-martial. The proceeding is ordinarily open. A general request to close the entire hearing because the allegations are embarrassing, because the case is high profile, or because a party would simply prefer privacy is not enough. The preliminary hearing officer must identify a concrete interest that outweighs the value of openness and must tailor any closure as narrowly as the situation allows.

This matters because the preliminary hearing officer, not the prosecution or the command, controls the conduct of the hearing. Either party, or a victim, may ask for closure, but the request is evaluated against the openness presumption rather than granted automatically.

Classified information

The clearest basis for closing part of a hearing is classified information. Military Rule of Evidence (MRE) 505 establishes a privilege for classified information and supplies the procedure for handling it. Closure on this ground is not casual. A portion of the hearing may be closed only on a specific showing that the testimony at issue will actually reveal classified information, evaluated witness by witness rather than as a blanket order over the entire proceeding.

Even then, closure is a last resort rather than a first one. The mechanism in MRE 505 favors alternatives that protect secrets while preserving as much openness as possible, such as an unclassified summary of the relevant facts, a stipulation, or redaction of sensitive fields. The preliminary hearing officer closes only the segment that genuinely requires it, then reopens.

Victim privacy and privileged communications

A second category of sensitive matter involves the privacy of a named victim and privileged records. Article 32 procedure incorporates the Military Rules of Evidence, including the privileges. When testimony or exhibits implicate a victim’s prior sexual behavior under MRE 412, communications …

In a court-martial, the panel of members serves the role a jury plays in civilian court, and the military judge is responsible for instructing those members on the law before they deliberate. In a complex Article 120 case with several specifications, that task becomes demanding. The judge must define the elements of each charged sexual offense separately, explain the legal meaning of consent and related concepts, guard against the danger that evidence on one count will improperly influence the verdict on another, and tell the members how to record and vote on their findings. The instructions in these cases are detailed and offense-specific because Article 120 contains multiple distinct theories of liability, and each specification must be decided on its own merits.

The judge’s duty to instruct under the Rules for Courts-Martial

The military judge’s instructional duty comes from the Rules for Courts-Martial. Rule for Courts-Martial 920 requires the judge to instruct the members on findings, and those instructions must include a description of the elements of each offense, along with any other explanations, descriptions, or directions necessary for the members to apply the law. Counsel may request specific instructions, and the judge must give an instruction that is correct, supported by the evidence, and not adequately covered elsewhere. The judge also has a duty to give certain instructions on the judge’s own initiative when the evidence raises them, even without a request. Military judges draw heavily on standardized pattern instructions, but they must tailor those patterns to the actual charges and evidence in the case.

Defining the elements of each Article 120 specification

Article 120 is not a single offense. It defines several, including rape and sexual assault, and it reaches conduct accomplished by force, by threat, by rendering another unconscious, or upon a person who is incapable of consenting because of impairment, among other theories. Each charged specification rests on a particular theory, and the military judge must instruct the members separately on the elements of each one. In a multi-count case, that means the members may hear several distinct sets of elements, and they must understand that proving one specification does not prove another. The judge breaks the case down count by count so the members evaluate each specification against its own elements and the evidence relevant to it.

Instructing on consent and lack of consent

Consent is central to most Article 120 litigation, and the instructions …

Service members accused under Article 120 of the Uniform Code of Military Justice (10 U.S.C. § 920) sometimes assume that if they decline to talk to anyone connected with a sexual assault report, including a Sexual Assault Response Coordinator, that refusal can be turned against them at trial. The reality is reassuring for the accused but requires careful explanation, because the role of a SARC is widely misunderstood. In short, an accused generally cannot be punished or have an adverse inference drawn against him for asserting his right to remain silent, and the SARC is not an investigator who interrogates the accused in the first place. This article clarifies what the SARC does and how the right to silence protects the accused.

What a SARC actually is

A Sexual Assault Response Coordinator, along with a SAPR victim advocate, is part of the military’s Sexual Assault Prevention and Response program. These personnel exist to support and assist victims of sexual assault. They help victims obtain medical care, counseling, and legal and other resources, and they are required to maintain the confidentiality of victim communications in restricted reporting situations. Only a SARC, a SAPR victim advocate, or healthcare personnel may receive a restricted report, which allows a victim to get help without automatically triggering an investigation or command notification.

The key point is that a SARC is a victim-support resource, not a criminal investigator. SARCs do not conduct interrogations of an accused service member. Criminal investigations are handled by military law enforcement organizations such as the Army Criminal Investigation Division, the Naval Criminal Investigative Service, or the Air Force Office of Special Investigations, and by command. Because the SARC’s function is to support victims rather than to question suspects, the premise of an accused being asked to participate in a SARC interview is largely a misunderstanding of how the program works. The accused’s interactions that carry legal weight are with investigators and command, not with the victim-advocacy structure.

The right to remain silent

Even setting aside the SARC’s limited role, the broader principle protects the accused. Article 31(b) of the UCMJ requires that a service member suspected of an offense be advised of the nature of the accusation, of the right to remain silent, and that any statement may be used against him, before being questioned by someone acting in an official law enforcement or disciplinary capacity. An accused has the right …

Intoxication is at the center of many sexual assault prosecutions under Article 120 of the Uniform Code of Military Justice (UCMJ). One theory of liability is that the alleged victim was incapable of consenting because of impairment, and toxicology, the measurement and interpretation of alcohol or drugs in the body, often becomes a battleground. Service members and counsel ask whether toxicology results actually come into evidence at a court-martial and, if so, how far they can be pushed. The results are admissible when the proper foundation is laid, but admissibility is governed by the same evidentiary discipline that applies to any scientific proof, and getting the numbers in is not the same as proving what they mean.

How Article 120 frames intoxication

Article 120 criminalizes sexual acts and contact under several theories. One of them addresses situations where the other person could not consent because that person was incapable of consenting due to impairment by a drug, intoxicant, or similar substance, and that condition was known or reasonably should have been known to the accused. Consent under the statute is a freely given agreement by a competent person, and competence can be undercut by intoxication. This is why toxicology matters: the government may use it to argue incapacity, and the defense may use it to argue that impairment fell well short of incapacity. The legal question is not the blood alcohol number alone but whether the person was capable of consenting, which the numbers inform but do not by themselves decide.

The foundation for admitting toxicology results

Toxicology results are documentary and scientific evidence, and they must clear the ordinary hurdles of the Military Rules of Evidence (MRE).

First comes authentication under MRE 901. A party must show that the report and the underlying sample are what they purport to be, which usually means establishing the chain of custody, identifying who collected and handled the specimen, and connecting the tested sample to the person at issue. Gaps or breaks in the chain are a frequent line of attack.

Next is hearsay. A laboratory report is an out-of-court statement, and to be admitted for its truth it must fit an exception, commonly the business-records or records-of-regularly-conducted-activity exception under MRE 803(6), established through a qualified witness or a proper certification showing the records were made at or near the time by someone with knowledge, kept in the regular course of activity, and …

When more than one service member is suspected of taking part in the same incident, a natural question is whether they can be processed together. Article 32 of the Uniform Code of Military Justice requires a preliminary hearing before charges may be referred to a general court-martial, and that requirement applies to each accused. Whether two or more accused can share a single Article 32 hearing depends on how the charges are structured and on the practical and fairness considerations that govern joint and common proceedings in the military justice system.

What an Article 32 hearing is for

Article 32, as implemented by Rule for Courts-Martial 405, is a preliminary hearing conducted by a preliminary hearing officer before a case can go to a general court-martial. Its scope is limited. The hearing officer examines the evidence and witnesses to determine whether each specification states an offense, whether there is probable cause to believe the accused committed the charged offenses, whether the convening authority has court-martial jurisdiction over the offense and the accused, and what disposition the officer recommends. It is not a trial, and it is not designed to resolve guilt.

Because the inquiry is keyed to each specification and to whether the accused committed it, the hearing must address the charges against a particular person. When multiple people are charged, the question becomes whether those charges can sensibly be examined in one proceeding.

Joint, common, and consolidated proceedings

Military practice recognizes more than one way to bring multiple accused together. In a joint offense, two or more accused are charged with committing the same offense together, such as participating in the same act as principals. In a common trial, separate offenses by different accused are tried in a single proceeding for efficiency, typically because they arise from the same incident or are closely related.

The Rules for Courts-Martial contemplate that charges against different accused arising from related conduct may be handled together. RCM 601 authorizes referral of offenses to a single court-martial, and the discussion accompanying the rules reflects a general preference that known related charges be addressed together rather than piecemeal. When the underlying charges can properly be joined, there is no categorical bar to conducting a single Article 32 preliminary hearing that covers the accused who are charged in that joined manner. A combined hearing can be efficient, especially where the witnesses and evidence overlap heavily, which …