Article 32 Preliminary Hearing
At Bilecki Law Group, we believe every service member has earned the right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution, including cases others have written off.
This guide follows Tim Bilecki’s published “Off The Record” discussion, with current legal updates.
We’re talking about the Article 32 hearing. It is often the first major hearing after charges have been preferred against you, although other proceedings can occur earlier. An impartial preliminary hearing officer, called a PHO, conducts it. That officer is ordinarily a judge advocate; the hearing is not a trial before a military judge and jury.
Topics Discussed
- What An Article 32 Is and Isn’t
- You Have A Right To Have An Attorney Present
- The Defense’s Options
- Strategies
- Probable Cause
- What The Government Will Do
- The Report
- A One Step Process
- The Next Step
What An Article 32 Is and Isn’t
It is incredibly important to understand what an Article 32 is and what it isn’t.
Let’s first start with what it isn’t. The Article 32 hearing is not the trial. The standard is not proof beyond a reasonable doubt. There is no jury deciding guilt. Oftentimes, clients want to go all in, or they think their case is going to be resolved at an Article 32. Typically, that is not what the hearing does.
AN ARTICLE 32 ISN’T
- The trial
- Proof beyond a reasonable doubt
- A jury deciding guilt
AN ARTICLE 32 IS
- Conducted by an impartial preliminary hearing officer (PHO)
- Limited to four purposes under Article 32 and R.C.M. 405
- Used strategically
The key is how to use an Article 32 hearing strategically. And to do it strategically, you have to understand what it is. Article 32 and Rule for Courts-Martial 405 define four purposes:
- Determine whether the specification alleges an offense under the UCMJ.
- Determine whether there is probable cause to believe the accused committed the charged offense.
- Determine whether the convening authority has court-martial jurisdiction over the accused and the offense.
- Recommend how the case should be handled.
The hearing is limited to those purposes. It is not an unrestricted discovery proceeding or a full trial of the defense.
You Have A Right To Have An Attorney Present
You have the right to be present and represented by counsel. You can present evidence and cross-examine witnesses who testify, within the hearing’s permitted scope. Requested testimony must be relevant, necessary to an issue the hearing addresses, and not cumulative. Witness availability rules also apply. A victim named in a specification cannot be required to testify at the preliminary hearing, and a civilian witness generally cannot be compelled to attend. Those limits matter when we decide what the hearing can accomplish.
The Defense’s Options
On the defense side, we’ve got a couple of different options. The choice depends on the strategy for the individual case.
One option is that we don’t want to show all of our cards. If the documentary evidence clearly establishes probable cause and the hearing offers little strategic benefit, you may decide to request a waiver. The accused must submit a written waiver, and the responsible convening authority or special trial counsel must determine that a hearing is not required. A hearing can still be conducted despite the waiver.
Strategies
You might not want to give the government a sneak peek at your playbook. That can be a strategic reason to seek a waiver. On the other hand, the hearing may provide a useful opportunity to present witnesses or documents. The evidence must address the permitted issues, such as probable cause or disposition, and meet the applicable relevance, necessity and availability rules. We cannot simply use the hearing to call every witness we would like to question.
One strategy we use in appropriate cases is to present evidence early to show that probable cause is missing or that the charges should not go forward. It can put your story of innocence before the decision maker before trial. In a sexual assault case, for example, the evidence may expose problems with the allegation about consent or capacity to consent under the law that applies to the offense date. When a witness testifies, questioning under oath may also clarify and preserve that account. It is an aggressive strategy, but whether it helps depends on the case.
It’s a complex strategy decision. You have the right to remain silent. You may testify under oath, which exposes you to cross-examination, or make an unsworn statement as permitted by the rule. Those are different choices. In our practice, an accused usually does not testify at the Article 32. We carefully consider whether putting your account out there helps now or creates problems later.
REMAIN SILENT
Your right at the hearing
TESTIFY UNDER OATH
Exposes you to cross-examination
UNSWORN STATEMENT
As permitted by the rule
Those are different choices · In our practice, an accused usually does not testify at the Article 32
Your attorney will be there to challenge the government’s evidence, cross-examine witnesses who testify within the hearing’s scope, and present appropriate defense evidence. The preliminary hearing officer then prepares a report. It is critical to remember that the PHO does not decide whether the case goes to trial. The report goes to the convening authority or, when the hearing officer was provided at the request of special trial counsel, to special trial counsel.
The written report explains the officer’s conclusions for each specification, including whether probable cause exists, whether an offense is alleged, and whether jurisdiction exists. The report must address the actual specifications; a general impression that something happened is not enough.
The PHO also recommends a disposition. That can include trial by general court martial, trial by special court martial, or that charges should not go forward. In one case, the officer recommended handling the allegations at an Article 15 or nonjudicial punishment. A recommendation is not an order, and any resulting action must be within the responsible authority’s powers.
Probable Cause
At an Article 32 hearing, the question is whether there is probable cause to believe that you committed the charged offense. That requires a reasonable basis in the evidence, not just a suspicion that something might have happened. It is still a much lower standard than proof beyond a reasonable doubt. The distinction matters because our strategy must address what the government actually has to show at this hearing.
What The Government Will Do
Now, at this hearing, the government may or may not call witnesses. Oftentimes, the government doesn’t want to give the defense an early look at how its witnesses will testify. It may present what lawyers call a paper Article 32: documents from the NCIS, OSI or CID investigation, witness statements, and an argument to the preliminary hearing officer. That can be enough to show probable cause.
But calling something an investigative file does not automatically make every part admissible or reliable. The PHO may consider reliable, relevant, noncumulative documentary evidence in place of testimony. Applicable privileges, self-incrimination protections and Military Rule of Evidence 412 still matter. We examine what the government actually submits and object where the rules support it.
Facing an Allegation?
The Report
The report goes to the convening authority or the special trial counsel responsible for the case. Where special trial counsel exercises authority over the charges, that counsel has the exclusive authority to refer them for trial. In other cases, the convening authority makes the referral decision with the required legal advice. The preliminary hearing officer’s recommendation matters, but it does not make that decision for them.
PHO REPORT
Conclusions for each specification and a recommended disposition
SPECIAL TRIAL COUNSEL
Where it exercises authority over the charges: exclusive authority to refer
CONVENING AUTHORITY
In other cases, with the required legal advice
REFERRAL DECISION
The recommendation matters, but does not make the decision
One Step in the Process
A strong recommendation that the case should not go forward, or a finding that probable cause is missing, can matter a great deal. It does not automatically end the case. The report is advisory. Article 32 is one step in the process, ordinarily required before referral to a general court martial unless the hearing is waived under the governing rules.
The Next Step
If the convening authority or special trial counsel with authority over the charges refers the case, that means sending it to trial. The case then proceeds toward arraignment and the remaining court-martial process. We discuss referral and arraignment in other episodes of “Off The Record.”
- Charges preferred
- Article 32 preliminary hearing
- PHO report (advisory)
- Referral: sending the case to trial
- Arraignment and the remaining court-martial process
Historical Article 32 Case Discussion
The decisions below concern the earlier investigation framework. Current Article 32 provides for a preliminary hearing with the purposes, witness rules and recording requirement set out in the current statute.
In United States v. Davis, 64 M.J. 445, 448–50 (C.A.A.F. 2007), the court distinguished correcting an Article 32 violation before trial from reviewing its effect after conviction. On direct appeal, Article 59(a) governs whether an error warrants disturbing the findings or sentence. The court upheld the conviction after examining the improper partial closure of the hearing for prejudice. That does not mean an accused must wait until after trial to seek a remedy.
The example involving a civilian witness is from United States v. Seldes, ACM 37265, slip op. at 10–12 (A.F. Ct. Crim. App. 27 October 2009). The court rejected a claim that an investigator improperly contacted witnesses to finalize summaries of testimony already given. It also rejected the claim that a civilian witness had to answer every question about a prior affair.
The court declined to extend Crawford’s trial confrontation rule to that Article 32 investigation, emphasizing that the summarized testimony was not admissible against the accused at trial. It also upheld the exclusion of the proposed evidence of the prior affair under Military Rule of Evidence 412.
Seldes discussed the investigation procedure then in effect and its limits as a discovery tool. Today’s preliminary hearing has the narrower statutory purposes and witness rules explained above, and it must be recorded. An old decision about written witness summaries should not be treated as a description of the current procedure.