The Article 32 preliminary hearing is one of the most misunderstood stages of the military justice process, and that misunderstanding produces predictable errors. Since the Military Justice Act of 2016 reshaped the hearing effective January 1, 2019, defense counsel who carry over habits from the old investigative model, or who treat the hearing as either a throwaway formality or a full dress rehearsal of the trial, tend to make the same recurring mistakes. The most damaging ones all trace back to misjudging what the modern hearing is and what it can realistically accomplish.
Misjudging the purpose of the hearing
The first and most consequential mistake is treating the Article 32 hearing as something it no longer is. Under the current version of Article 32, the preliminary hearing officer decides only whether each specification alleges an offense, whether probable cause exists to believe the accused committed it, whether the convening authority has jurisdiction, and what disposition to recommend. Probable cause is a low standard. Counsel who structure their entire approach around winning an outright dismissal at this stage are usually planning for an outcome the hearing rarely produces, and in doing so they may neglect the more attainable goals the hearing actually offers. The flip side is equally harmful: counsel who dismiss the hearing as a meaningless rubber stamp waive opportunities that do not return.
Wasting the discovery and preservation opportunity
Although discovery is no longer a stated purpose of the hearing, the proceeding still generates a sworn record. A frequent error is failing to use cross-examination to lock witnesses into testimony, expose inconsistencies, and create a transcript that can be used for impeachment at trial. Government witnesses, including the alleged victim where they choose to testify, may say things under questioning that conflict with later statements. Counsel who ask only perfunctory questions, or who decline to question witnesses at all to avoid tipping their hand, can lose a chance to preserve favorable or contradictory testimony that may never be available on the same terms again.
Mishandling cross-examination of the alleged victim
In sexual-assault cases, the alleged victim often has the right to decline to testify at the preliminary hearing, and counsel sometimes assume cross-examination is therefore off the table. When a witness does testify, however, a different mistake appears: counsel who treat the cross-examination as a trial cross, attacking aggressively in front of a preliminary hearing officer who is only assessing probable cause. Overreaching can harden the record, generate Military Rule of Evidence 412 problems, and alienate the very officer who will write the disposition recommendation. Equally damaging is ignoring the rape-shield procedures entirely. Where Military Rule of Evidence 412 applies through Rule for Courts-Martial 405, a party must give written notice by motion before the hearing, and evidence offered without following those procedures must be excluded absent good cause.
Misunderstanding which evidentiary rules apply
A persistent technical mistake is assuming the full Military Rules of Evidence govern the hearing. They do not. Under Rule for Courts-Martial 405, most of the Military Rules of Evidence do not apply at an Article 32 hearing, with limited exceptions covering self-incrimination and rights warnings, the rape-shield rule, and the privileges in Section V of the rules. Counsel who lodge a barrage of trial-style evidentiary objections waste credibility and time, because the preliminary hearing officer may consider evidence that would be inadmissible at trial. Conversely, counsel who forget that privileges and rights warnings still apply can miss a legitimate objection that the relaxed-rules framework preserves.
Neglecting the disposition recommendation
Because the hearing rarely ends in dismissal, the disposition recommendation is often the single most valuable thing the defense can influence. A common mistake is failing to build a case for a favorable recommendation, such as referral to a lower forum, nonjudicial punishment, or administrative resolution. The accused has the right to present matters in defense and mitigation relevant to the hearing’s purposes and to argue for a disposition that serves the accused’s interests. Counsel who put on no service-record evidence, offer no mitigation, and make no disposition argument forfeit influence over the one outcome they were most likely to shape. The recommendation is not binding on the convening authority, but it carries weight, and squandering it is a recurring error.
Letting the accused make ill-advised statements
The accused has the right to make a statement at the hearing, and the temptation to explain or contextualize can be strong. A serious mistake is allowing or encouraging a statement that creates admissions, locks the accused into a version of events, or provides the government a preview of the defense theory. Because the hearing is recorded under oath, anything the accused offers can have consequences at trial. Disciplined counsel weigh the limited upside of a statement against this lasting risk.
Failing to preserve objections and rights
Procedural rights at the Article 32 stage can be lost if not asserted. Counsel sometimes fail to object to defects in the charges, to challenges with the appointment or impartiality of the preliminary hearing officer, or to deficiencies in notice, and then find those issues harder to raise later. Preserving the record, noting objections clearly, and documenting any limitations on the defense’s ability to confront witnesses are basic but frequently overlooked tasks.
Inadequate preparation and unrealistic expectations
Underlying nearly all of these errors is insufficient preparation. The compressed, focused nature of the modern hearing can lull counsel into doing less homework than the trial would demand, yet the strategic decisions made here, what to ask, what to preserve, what to argue for, and what to leave alone, ripple through the rest of the case. Counsel who arrive without a clear, purpose-matched plan tend to default to either passivity or overreaching, both of which are mistakes.
The common thread
Almost every recurring error at an Article 32 hearing comes from a mismatch between what counsel attempt and what the hearing is designed to do. The hearing tests probable cause, fixes jurisdiction, and recommends disposition under relaxed evidentiary rules. Counsel who align their cross-examination, evidentiary objections, mitigation evidence, and disposition argument with that actual purpose, while protecting the accused from self-inflicted harm, avoid the mistakes that most often undermine the defense. Because the right approach is highly fact-dependent, an accused facing an Article 32 hearing should rely on the judgment of experienced military defense counsel.
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.