Military Lawyers

The Article 32 preliminary hearing is the gateway between a preferred charge and referral to a general court-martial. It is presided over by a preliminary hearing officer, or PHO, who is a neutral official rather than an advocate for either side. When the government and the defense each present expert opinions that point in opposite directions, the PHO has to make sense of that conflict without conducting a full trial. The way a PHO handles dueling experts reflects the limited but real purpose of the hearing and the unusual evidentiary rules that govern it.

The narrow purpose of the Article 32 hearing

Article 32, codified at 10 U.S.C. 832, requires a preliminary hearing before a charge may be referred to a general court-martial. The hearing is not a trial and it is not designed to resolve guilt. Its purpose is limited and statutory. The PHO determines whether the specification states an offense under the UCMJ, whether there is probable cause to believe the accused committed the charged offense, whether the convening authority has court-martial jurisdiction over the accused and the offense, and what disposition the PHO recommends.

Probable cause is the operative standard, and it is far lower than proof beyond a reasonable doubt. This single fact shapes everything about how conflicting expert opinions are treated. The PHO is not asked to decide which expert is correct. The PHO is asked whether, taking the evidence as a whole, there is probable cause to believe an offense occurred and that the accused committed it.

The PHO as a neutral official

Whenever practicable, the PHO is a certified judge advocate. When that is not practical, the convening authority may detail an impartial commissioned officer. Either way, the PHO is meant to be neutral and does not represent the government or the defense. The PHO hears the evidence, rules on questions of admissibility within the limited rules that apply, and submits a written report with findings and a disposition recommendation to the convening authority.

That neutral posture matters when experts conflict. The PHO is not a partisan trying to vindicate one side’s expert. The PHO weighs both presentations against the modest probable-cause threshold.

Relaxed rules of evidence change the picture

A defining feature of the Article 32 hearing is that the Military Rules of Evidence largely do not apply. With limited exceptions for privileges, certain interrogation rules, and the rape-shield protections of MRE …

Article 31 of the Uniform Code of Military Justice (UCMJ) is the military’s core self-incrimination protection. It requires that a service member suspected of an offense be warned, before questioning, of the nature of the accusation, of the right to remain silent, and that any statement may be used as evidence against him. A natural question is what part military paralegals and legal clerks play in this process. The honest answer is that their role is supporting and administrative rather than advisory in the legal sense, and understanding why requires distinguishing two very different things: giving an Article 31(b) warning during an investigation, and giving legal advice about Article 31.

Article 31 protects against a specific kind of questioning

Article 31(b) applies when a person subject to the UCMJ questions a suspect or accused for a law enforcement or disciplinary purpose. The warning requirement is triggered by the capacity in which the questioner is acting. Military courts assess this objectively, looking at the totality of the circumstances at the time of the questioning to determine whether the questioner was acting, or could reasonably be seen to be acting, in an official law enforcement or disciplinary capacity. Casual conversations and questioning that is genuinely administrative or unrelated to law enforcement or discipline do not trigger the warning.

This framing matters for paralegals and clerks because their normal duties rarely place them in the role of interrogating a suspect for a disciplinary or law enforcement purpose. Their work in a legal office, a trial counsel shop, or a defense office is overwhelmingly administrative and supportive.

Paralegals and clerks generally do not give the Article 31 warning

Because the warning obligation falls on the person conducting a law enforcement or disciplinary interrogation, the duty to advise a suspect of Article 31 rights ordinarily rests with investigators, military police, commanders, first sergeants, and others who actually question suspects in that capacity. A paralegal or legal clerk who is performing clerical or paralegal support is not typically the person conducting such an interrogation, and so is not typically the person who must deliver the warning.

That said, the rule is functional, not title based. Article 31’s protections turn on what a person is doing, not on the person’s job description. If a paralegal were directed to interrogate a suspect for a disciplinary or law enforcement purpose, the warning requirement would attach to that conduct just …

Integrity-based security clearance denials are among the hardest to reverse, but they are not hopeless. These denials typically arise under Guideline E, Personal Conduct, of the national security adjudicative guidelines, and they usually stem from an allegation that the applicant lied or withheld information, most often on the Standard Form 86. Because the concern is honesty itself, adjudicators treat these cases with particular suspicion. The path to overturning such a denial runs through a disciplined, documentary rebuttal that meets the allegations head on and demonstrates, with evidence rather than argument, that the security concern has been resolved.

Why Integrity Cases Are So Difficult

Guideline E addresses conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules, any of which can raise doubt about a person’s reliability and trustworthiness. In practice, the most common Guideline E denial involves intentionally falsifying or omitting relevant information on the SF-86. Adjudicators take deliberate concealment and lack of candor extremely seriously, and there is a well-worn observation in this field that lying about an issue is often treated as worse than the underlying issue itself.

That dynamic shapes the entire rebuttal strategy. An applicant who simply re-explains the original facts, or who continues to minimize the omission, tends to deepen the concern rather than resolve it. What moves an adjudicator is durable, documented proof, because the whole-person evaluation asks whether remaining doubt about trustworthiness is acceptable, not whether the applicant can offer a sympathetic narrative.

The Statement of Reasons and the Window to Respond

The formal process begins when the applicant receives a Statement of Reasons, the document that lays out the specific allegations supporting the proposed denial. The applicant has a defined window to respond, and in the industrial context governed by the Defense Office of Hearings and Appeals that response is generally due within a set number of days of receiving the Statement of Reasons. A complete response admits or denies each allegation and provides information that rebuts, explains, extenuates, or mitigates each one.

This is the moment where documentary rebuttal does its work. A bare denial accomplishes little. The applicant must answer every allegation specifically and attach evidence that supports each point. The response sets the foundation for everything that follows, including any hearing before an administrative judge, who will weigh the documents and testimony and issue a written decision either granting or denying eligibility.

Building the Documentary

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Article 31 of the Uniform Code of Military Justice requires that a service member suspected of an offense be advised, before questioning, of the nature of the accusation, of the right to remain silent, and that any statement may be used against the suspect. When the suspect does not share a common language with the investigator, an interpreter delivers that advisement. If the interpreter mistranslates the rights, the warning the suspect actually received may not have conveyed what Article 31 requires. That failure can be a basis to suppress any statement that followed, because the validity of the warning is a precondition to admitting the statement.

Why the quality of the advisement controls admissibility

A statement obtained without a proper Article 31 warning is treated as involuntary for purposes of the Military Rules of Evidence, and an involuntary statement is generally inadmissible. The rules governing warnings about rights and the admissibility of confessions work together: a warning that fails to satisfy Article 31 undermines the voluntariness of any resulting statement, which then becomes subject to suppression. The point of the warning is to ensure that a suspect understands the right to remain silent and the consequences of speaking. If the suspect never received an accurate warning, the legal foundation for admitting the statement is missing.

The interpreter is the conduit for that understanding. When the suspect’s comprehension of the rights depends entirely on the interpreter’s rendering, an error in the rendering can mean that the required understanding never occurred. A warning given in words the suspect could not understand, or a translation that omits or distorts the right to remain silent, is not the warning the statute contemplates.

How an interpreter’s mistake undermines a valid waiver

To use a suspect’s statement, the government must establish that the suspect was properly advised and that any waiver of the right to silence and the right to counsel was knowing, intelligent, and voluntary. A valid waiver requires that the suspect actually understood the rights being given up. An interpreter’s mistake attacks that requirement at its root. If the interpreter mistranslated the right to remain silent, conveyed the warning in the wrong dialect or in language the suspect did not follow, or summarized rather than accurately translated the advisement, then the suspect’s apparent waiver may not reflect a genuine understanding of the rights. A waiver that is not knowing and intelligent cannot support admission …

This question comes up often after a court-martial conviction, when a service member learns that the panel found him guilty not of the charged offense but of something less serious that no one seemed to ask for. The short answer is yes. Under the right circumstances a military judge not only may, but must, instruct the members on a lesser included offense even when neither the prosecution nor the defense requests it. Understanding why requires a look at how military instructions work and what limits the courts have placed on them.

The Judge’s Duty to Instruct Sua Sponte

In a court-martial, the military judge instructs the panel members on the law before they deliberate, much as a civilian judge instructs a jury. The Rules for Courts-Martial direct the judge to give certain instructions, and the courts have long held that some of those instructions cannot simply be skipped because counsel failed to ask.

A military judge has what the courts call a sua sponte duty, meaning a duty to act on the judge’s own initiative, to give certain instructions when they are reasonably raised by the evidence. Lesser included offense instructions fall into this category. Because they are required instructions under the rule governing instructions on findings, they are not waived merely because counsel did not request them. In practical terms, if the evidence at trial reasonably supports a finding on a lesser included offense, the judge is expected to instruct on it regardless of whether either side raised the issue.

That is why a panel can return a conviction on an offense that was never the focus of the parties’ arguments. The judge placed the option before the members because the evidence made it a live possibility.

What Counts as a Lesser Included Offense

The duty only applies to genuine lesser included offenses, and military law defines that category narrowly. Under Article 79 of the UCMJ and the governing case law, courts use an elements test. One compares the elements of the two offenses, and if all of the elements of the lesser offense are also elements of the greater charged offense, the lesser one is included within the greater.

The Court of Appeals for the Armed Forces explained the reasoning behind this approach in United States v. Jones, decided in 2010. The court held that the elements test protects the accused’s constitutional right to fair notice. An accused …

An Article 32 preliminary hearing is the gateway step before a case can be referred to a general court-martial under the Uniform Code of Military Justice. Because it is part of the military justice process, people often ask whether these hearings are open to the public or closed behind locked doors. The short answer is that Article 32 hearings are presumptively open, but the presiding officer has discretion to close all or part of a hearing when a strong enough reason exists. This article explains the legal basis for that presumption, the standards that govern closure, and what openness actually looks like in practice.

The legal framework

Article 32 is codified at 10 U.S.C. section 832, and the procedures that govern these hearings are set out in Rule for Courts-Martial 405 in the Manual for Courts-Martial. The hearing is run by a preliminary hearing officer, a legally trained official whose job is narrow. The officer determines whether each specification states an offense under the code, whether there is probable cause to believe the accused committed the charged offenses, whether the convening authority has court-martial jurisdiction over the accused and the offenses, and what disposition the officer recommends. The hearing is not a trial and is not a discovery device, and that limited purpose shapes how questions of public access are resolved.

The presumption of openness

Military practice treats Article 32 hearings as presumptively public. An accused is generally entitled to a public hearing, and the public and press have a recognized interest in observing the administration of military justice. Openness serves several values. It allows the community to see that the process is fair, it discourages improper conduct by holding participants accountable, and it reinforces public confidence in the integrity of the system. For these reasons, the default expectation is that an Article 32 hearing will be open and that ordinarily the proceedings should remain open.

When a hearing can be closed

The presumption is strong but not absolute. The preliminary hearing officer has the discretion to close all or part of a hearing, or to restrict access, when there is a good reason that outweighs the value of openness. Closure is the exception, and the officer must articulate the specific reasons supporting it rather than closing the hearing as a matter of routine.

Recognized reasons for closing or restricting access include protecting classified or otherwise sensitive information, preventing psychological …

Article 31 of the Uniform Code of Military Justice, found at 10 U.S.C. 831, is the military’s core protection against compelled self-incrimination. Most discussion of Article 31 focuses on the famous rights advisement, the requirement that a suspect be told of the nature of the accusation and the right to remain silent before questioning. But Article 31 reaches further than the warning. It also bars the use of statements obtained through coercion. That raises a practical question for service members and counsel: do tactics like sleep deprivation or isolation fall within what Article 31 prohibits?

The two distinct protections inside Article 31

Article 31 contains several related but separate guarantees. Subsection (b) requires that a person suspected of an offense be advised of the nature of the accusation, that the person need not make any statement, and that any statement may be used against the person. Subsection (d) is the coercion provision. It bars the receipt in evidence against an accused of any statement obtained through the use of coercion, unlawful influence, or unlawful inducement.

The advisement rule and the anti-coercion rule address different problems. The advisement ensures the suspect knows the right to silence. The anti-coercion rule, by contrast, polices the conditions under which a statement is extracted, even from a suspect who was properly warned. A statement can be inadmissible under subsection (d) because of how it was obtained, regardless of whether the warning was given.

Coercion and the concept of voluntariness

The coercion provision works hand in hand with the broader requirement that a confession be voluntary. Under military law, before a statement can be admitted, the prosecution bears the burden of establishing that the statement was made voluntarily, and the military judge must find voluntariness by a preponderance of the evidence. The inquiry looks at the totality of the circumstances, weighing both the characteristics of the accused and the details of the interrogation.

The central question in a voluntariness analysis is whether the statement was the product of an essentially free and unconstrained choice. If the accused’s will was overborne and the capacity for self-determination was critically impaired, the statement is not voluntary, and using it would offend due process. This is the framework into which tactics like sleep deprivation and isolation fit.

Where sleep deprivation and isolation come in

Sleep deprivation and isolation are classic examples of conditions that can render a statement involuntary. Neither …

Article 82 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. section 882, makes it an offense to solicit or advise another to commit an offense under the Code. A common misconception is that solicitation must be spoken, perhaps imagining a face-to-face exchange in which one service member urges another to commit a crime. That is not the law. Solicitation under Article 82 is not limited to verbal communication. It can be accomplished in writing, electronically, and even through conduct, and modern cases frequently involve text messages and social media. What matters is the act of urging or advising the offense, not the medium through which it travels.

What Article 82 prohibits

Article 82 reaches any person subject to the UCMJ who solicits or advises another person to commit an offense under the Code. The statute provides for punishment as a court-martial may direct and includes enhanced treatment for soliciting certain especially serious offenses, such as desertion, mutiny, sedition, or misbehavior before the enemy, particularly where the solicited offense is attempted or actually committed. Following the modernization of the UCMJ, Article 82 broadly covers solicitation of offenses under the Code, rather than being confined to a short list of crimes.

The elements the government must prove are that the accused solicited or advised a particular person or persons to commit a particular offense under the UCMJ, and that the accused did so with the intent that the offense be committed. The communication must be directed at a specific person and must amount to genuine urging or advising, not vague or generalized talk.

The conduct element does not specify a medium

Nothing in the elements ties solicitation to spoken words. The actus reus of solicitation is the act of urging, advising, commanding, or otherwise seriously attempting to persuade another to commit the offense. That act can be carried out by any means capable of communicating the message. Solicitation may be accomplished by words, whether spoken or written, and it may also be accomplished by other means, including conduct or nonverbal signals that clearly convey the urging. The law focuses on whether the accused communicated the solicitation with the requisite intent, not on the channel used.

This is why a written note, a letter, an email, a text message, a direct message on a social media platform, or a recorded message can all serve as the vehicle for solicitation. …

Misprision of a serious offense is the crime of knowing that someone has committed a serious offense and then taking steps to conceal it. A natural question is how much weight a service member’s failure to report that offense carries in such a prosecution. The short answer is that failure to report, standing alone, is not enough. The offense requires an affirmative act of concealment, and the evidentiary value of a failure to report lies in what it can help show when it is combined with proof of concealment and knowledge, not in the silence by itself.

A note on the article number

The offense commonly called misprision of a serious offense is set out in the Uniform Code of Military Justice as Article 131c. Article 131b, by contrast, is obstructing justice. The two are closely related concealment-type offenses and are sometimes confused, including in the way questions about them are framed. This article addresses misprision of a serious offense as the substantive crime at issue, while noting that the correct codification for misprision is Article 131c and that Article 131b covers obstruction of justice. The distinction matters because the elements and the role of evidence differ between the two, and a prosecution must be built around the elements of the offense actually charged.

The elements that frame the evidence

Misprision of a serious offense requires the government to prove several elements. First, that a serious offense was committed by a certain person. Second, that the accused knew that person had committed the serious offense. Third, that thereafter the accused concealed the serious offense and failed to make it known to civilian or military authorities as soon as possible. And fourth, depending on the charging theory, that the conduct was prejudicial to good order and discipline or service-discrediting. A serious offense for this purpose is one punishable under the code by death or by confinement for more than one year.

The third element is the key to the question of evidentiary value. It pairs concealment with the failure to report. Both must be present. The failure to make the offense known is necessary, but it is not the wrong by itself.

Why failure to report alone is insufficient

A central principle of misprision is that mere silence or a passive failure to come forward does not establish the offense. The accused must take some positive act to conceal the offense. …

After a court-martial finds an accused guilty, the case moves to sentencing. When the sentencing authority is a panel of members rather than a military judge alone, the panel must decide on an appropriate punishment. At that stage the defense is entitled to present matters that argue for a lighter sentence. A common and important question is whether the hardships of deployment, including the strain of combat service, separation from family, and the toll of repeated tours, can be put before the panel as mitigation. The answer is yes, and the rules of court-martial sentencing are designed to allow exactly that kind of evidence.

The sentencing framework

Court-martial sentencing procedure is governed by Rule for Courts-Martial (RCM) 1001. The presentencing process generally follows a sequence. The trial counsel, representing the government, may present service data and personal information about the accused, evidence of prior convictions, and evidence in aggravation. The defense then has its turn to present evidence in extenuation, in mitigation, or both. The panel hears this evidence and the arguments of counsel before deciding on a sentence.

This structure matters because it gives the defense an affirmative right to put favorable information before the members. Sentencing is not limited to the bare facts of the offense. The members are entitled to learn about the person they are sentencing, and the defense is entitled to present the context that argues for leniency.

Extenuation and mitigation defined

RCM 1001 distinguishes two related categories of defense evidence, and deployment hardship can fit within either depending on how it relates to the case.

Matter in extenuation explains the circumstances surrounding the commission of the offense, including reasons for committing it that do not amount to a legal justification or excuse. If, for example, the conduct occurred in a context shaped by the pressures of a deployment, evidence describing that context can help the panel understand why the offense happened, even though it does not excuse it.

Matter in mitigation is introduced to lessen the punishment or to support a recommendation for clemency. Mitigation expressly includes particular acts of good conduct or bravery and evidence of the accused’s reputation or record in the service for qualities such as efficiency, fidelity, courage, and other military virtues. Deployment and combat service fit naturally here, because they speak directly to the accused’s record, sacrifice, and character as a service member.

Why deployment hardship qualifies

Deployment hardship …