A defense attorney would almost always advise a client against waiving their right to an Article 32 preliminary hearing due to its immense strategic value. Forfeiting this right means giving up the single most important pretrial discovery and case-shaping tool available to the defense in the military justice system. There are several compelling reasons for this strong preference to proceed with the hearing.
The primary reason is discovery. The Article 32 hearing is the defense’s first and best opportunity to see the government’s case in action. It forces the government to present its key witnesses, allowing the defense to cross-examine them under oath. This process can reveal critical information, expose weaknesses in witness testimony, uncover inconsistencies, and provide a much deeper understanding of the prosecution’s strategy than a paper file ever could.
Second, the hearing is invaluable for “locking in” testimony. Because the entire proceeding is transcribed, any statement a witness makes is preserved. If that witness changes their story or testifies differently at trial, the defense can use the Article 32 transcript to impeach their credibility in front of the panel members. This is a powerful tool for undermining the government’s case and can deter witnesses from embellishing or altering their accounts later.
Finally, the hearing provides a chance to influence the convening authority. A strong performance by the defense can lead the Preliminary Hearing Officer (PHO) to recommend dismissing or reducing the charges. Even if the PHO finds probable cause, effective cross-examination might persuade the government to offer a better plea deal or convince the convening authority to refer the case to a less severe forum. Waiving the hearing sacrifices this crucial opportunity to advocate for a favorable pretrial disposition.