At an Article 32 preliminary hearing under the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. 832, the defense and the government frequently see the proceeding differently. The defense often wants a broader hearing with more witnesses and more questioning, while the government usually wants to keep the hearing tightly focused on the minimum needed to establish probable cause. When the two sides disagree about how far the hearing should reach, the dispute has to be resolved by a defined process rather than by either party’s preference. This article explains what happens when the defense and prosecution disagree on the scope of an Article 32 hearing.
The scope is fixed by statute
The first thing to understand is that the outer boundary of the hearing is set by law, not by negotiation between counsel. The statute limits the preliminary hearing to four determinations: whether each specification alleges 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 of the case should be recommended. The examination of witnesses and evidence is limited to matters relevant to those determinations. So when the parties disagree, the question is rarely whether the scope can be expanded beyond these statutory limits. It is usually whether a particular witness, document, or line of inquiry falls inside or outside those limits.
The preliminary hearing officer decides
The official who resolves scope disputes is the preliminary hearing officer. This officer, who is ordinarily a certified judge advocate acting as an impartial decision-maker, presides over the proceeding and rules on the disagreements that arise. Under the Rules for Courts-Martial, the preliminary hearing officer applies the relevant evidentiary rules and occupies the role that a military judge would otherwise hold for purposes of admitting or excluding evidence at the hearing. When the defense argues that a matter is within scope and the government argues that it is not, the hearing officer makes the call. Neither party can unilaterally enlarge or shrink the proceeding over the other’s objection; the hearing officer’s ruling governs the conduct of the hearing.
Disputes over witness production
The most common scope disagreement concerns whether a witness must be produced to testify. The defense may request a particular witness, and the government may object that the testimony is unnecessary. The governing standard asks whether the witness’s testimony is relevant, not cumulative, and necessary for the limited purpose of the hearing. When the government objects to producing a witness, the defense may ask the preliminary hearing officer to determine whether the witness meets that standard. The hearing officer then decides production based on relevance to the four statutory determinations rather than on the broader trial-preparation value the testimony might have. Because the hearing is no longer a discovery vehicle, a witness who would be useful for general trial preparation but is not necessary to the probable cause determination may properly be excluded.
The victim’s protected status in scope disputes
A recurring source of disagreement involves the testimony of a named victim. By statute, a victim may not be required to testify at the preliminary hearing, and a victim who declines is treated as unavailable. This protection limits the scope on one side regardless of the defense’s wishes, because the defense cannot compel the victim’s appearance. When the defense seeks to expand the hearing to include live questioning of the victim and the government invokes the victim’s right not to testify, the hearing officer must honor the statutory protection. The dispute in that situation is resolved in the victim’s favor on the question of compelled testimony, and the government may instead present the victim’s account through other permissible means.
Objections, rulings, and the record
When a scope dispute arises during the hearing, counsel for the affected party makes an objection or a request on the record, the opposing party responds, and the preliminary hearing officer rules. Because the hearing officer applies the evidentiary rules in the role of a military judge, the same mechanics of objection and ruling that occur at trial apply in a streamlined form at the hearing. The hearing officer can exclude evidence or testimony that exceeds the permitted scope and can limit questioning that strays from the four statutory purposes. Counsel should be prepared to articulate exactly how a contested matter bears on probable cause, the elements, jurisdiction, or disposition, because that connection is what determines whether the matter is within scope.
Preserving issues and seeking later relief
A ruling by the preliminary hearing officer is not necessarily the end of the matter. If the defense believes the hearing was improperly narrowed, or the government believes it was improperly broadened, the disagreement can be preserved and raised later before the military judge once charges are referred. The military judge has authority over the case at trial and can address defects in the preliminary hearing, although the relief available depends on the nature of the error and any resulting prejudice. In addition, the convening authority retains the power to refer charges even if the hearing officer recommends against it, which is one reason scope disputes at the Article 32 stage, while important, are not always outcome-determinative for the case as a whole.
Why these disputes matter
Even though the convening authority can refer charges over a contrary recommendation, the scope of the hearing still matters a great deal. A broader hearing can give the defense an early look at the government’s evidence, can lock in testimony, and can support a recommendation for dismissal of a specification or for a lesser disposition. A narrower hearing limits those opportunities. The parties fight over scope precisely because the difference affects how much each side learns and how the case is positioned going forward. The preliminary hearing officer’s rulings therefore shape the practical value of the proceeding for both sides.
Conclusion
When the defense and prosecution disagree on the scope of an Article 32 hearing, the disagreement is resolved by the preliminary hearing officer within the boundaries Congress set by statute. The hearing officer applies the evidentiary rules, decides whether contested witnesses are relevant, not cumulative, and necessary, and honors protections such as a named victim’s right not to testify. Issues can be preserved for later review by the military judge, and the convening authority retains independent referral authority. Because these scope determinations influence what each side gains from the hearing, an accused should rely on qualified military defense counsel to litigate them effectively.
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.