If a service member, after consultation with their defense counsel, decides to waive their right to an Article 32 preliminary hearing, the case moves directly to the next stage of the legal process. The waiver must be made in writing and must be knowing and voluntary. Once the waiver is executed, the convening authority is no longer required to conduct the preliminary hearing before referring the charges to a general court-martial.
By waiving the hearing, the accused gives up all the rights and strategic advantages associated with it. This includes the right to be present, to be represented by counsel at the hearing, to cross-examine government witnesses, to present defense evidence, and to receive an impartial recommendation from a Preliminary Hearing Officer (PHO). The case essentially skips this critical screening and discovery phase.
After the waiver, the convening authority will proceed with the referral decision based on the existing investigative file, which may include reports from law enforcement (like CID or NCIS) and the recommendation of their Staff Judge Advocate (SJA). Without the benefit of the PHO’s report and a tested record of evidence, the convening authority’s decision will be based solely on the information gathered by investigators and presented by the government.
Waiving an Article 32 hearing can sometimes be a strategic choice, perhaps as part of negotiations for a plea agreement or if the defense believes the hearing would do more harm than good. However, it is a significant decision with major consequences, as it forfeits a valuable opportunity to challenge the government’s case early in the process. The case simply proceeds toward a potential general court-martial without this vital procedural step.