What Is an Article 32 Preliminary Hearing and Should I Waive It?

What Is an Article 32 Preliminary Hearing and Should I Waive It?

By Michael Waddington, civilian military defense lawyer, Gonzalez & Waddington. Updated October 2026.

Short answer: An Article 32 preliminary hearing is the military’s probable cause hearing before a general court-martial, and in most cases you should not waive it, because it is your first real look at the government’s case before trial. Civilian military defense lawyer Michael Waddington of Gonzalez & Waddington explains how the hearing works today and the limited situations where waiving it can make sense.

In this video, Michael Waddington explains what an Article 32 preliminary hearing is, what happens there, and why waiving it is usually a mistake.

What is an Article 32 preliminary hearing?

Under Article 32, UCMJ, and Rule for Courts-Martial 405, no charge can be referred to a general court-martial until a preliminary hearing is held, unless you waive it. A special court-martial does not require one.

A preliminary hearing officer presides. Whenever practicable, that officer is an experienced judge advocate.

The hearing happens after charges are preferred and before the referral decision. It is the main event in the window between preferral and referral.

What does the preliminary hearing officer decide?

The hearing has four purposes: decide whether there is probable cause to believe you committed the offense, decide whether the court-martial would have jurisdiction, consider whether the charges are in proper form, and recommend a disposition.

The officer writes a report. The convening authority, or the special trial counsel for covered offenses, reads that report before deciding whether to refer. The officer’s recommendation is not binding, but it carries weight.

How is today’s Article 32 different from the old investigation?

A lot of advice about the Article 32 is out of date. Before reforms that took effect in 2014 and 2019, it was a broader investigation where the defense could call many witnesses and cross-examine the accuser at length.

Today the hearing is limited to its four purposes. A named victim cannot be required to testify and usually does not. The officer can also consider hearsay, so sworn statements and investigative reports come in without the witness present.

Why should you usually not waive the Article 32?

1. Discovery. The government must give the defense the evidence it plans to rely on at the hearing. That is often the first time your lawyer sees the investigative file, forensic reports, and the accuser’s statement.

2. Locking in testimony. If a witness testifies, it is under oath and recorded. If the story changes at trial, your lawyer can use the hearing testimony to impeach that witness. Investigators who testify often say things that help the defense later.

3. The report. A report that says the evidence is weak, or that recommends a special court-martial instead of a general, changes the referral conversation.

4. The defense submission. Under Rule for Courts-Martial 405, the defense can present evidence and written matters. It is the first formal chance to put your side in front of a decision-maker without you testifying.

When might waiving the Article 32 make sense?

Sometimes waiver is part of a negotiated plea agreement, and giving it up gets you something concrete in return. Occasionally a hearing would preview a defense your lawyer does not want the government to see, though that is rare.

Timing can also matter if a faster resolution helps you more than the information would. These are decisions to make with your lawyer after weighing what you give up. Only you can waive the hearing, and the waiver should be in writing.

What happens at the hearing?

Your lawyer attends with you. The government presents its evidence, usually documents and sometimes an investigator. Your lawyer cross-examines anyone who testifies, raises objections, and presents the defense evidence and argument.

You generally do not testify. Most hearings take a few hours to a day.

What to do right now

1. Do not sign anything waiving your Article 32 hearing until you have talked with a defense lawyer.
2. Ask your lawyer what evidence the government has disclosed and what is still missing.
3. Give your lawyer names of witnesses, messages, and documents that could support a defense submission.
4. Do not discuss the case with anyone, and do not contact the accuser or witnesses.
5. Prepare with your lawyer for the hearing, including whether you will say anything at all.

Key takeaways

• An Article 32 preliminary hearing is required before a general court-martial unless you waive it.
• The hearing officer decides probable cause, jurisdiction, and the form of the charges, and recommends a disposition.
• The hearing is often the defense’s first look at the government’s evidence.
• The hearing officer’s report can influence whether, and to which court, charges are referred.
• Waiver can make sense in a plea deal, but in most cases it gives up more than it gains.

Frequently asked questions

Who can waive an Article 32 hearing?

Only you, the accused, can waive it, and the waiver should be in writing after you talk with your lawyer. Your lawyer cannot waive it for you without your informed consent.

Does the accuser have to testify at an Article 32?

No. A named victim cannot be required to testify at the preliminary hearing. The hearing officer can rely on written statements and reports instead.

Do I have to testify at my Article 32 hearing?

No. You have the right to remain silent, and in most cases you should not testify. Your lawyer can present evidence and argument for you.

Is an Article 32 hearing like a trial?

No. It decides probable cause, not guilt, and the rules of evidence mostly do not apply. Still, what is said there under oath can be used at trial.

Related questions

• Preferral vs. referral: the two steps that decide your case
• What happens after court-martial charges are preferred
• What happens after charges are referred to a court-martial

Key authorities

• Article 32, UCMJ: a preliminary hearing is required before referral to a general court-martial
• Rule for Courts-Martial 404A: within five days after the hearing is directed, the government must give the defense the hearing order, witness statements in military control, the evidence it will present, and the matters the convening authority considered
• Rule for Courts-Martial 405: procedures for the preliminary hearing and the hearing officer’s report, including the five-day window to object to the report
• United States v. Bell, 44 M.J. 403 (C.A.A.F. 1996): the hearing as the military counterpart to a grand jury
• United States v. Garcia, 59 M.J. 447 (C.A.A.F. 2004): waiver of the hearing is personal to the accused
• ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997): a qualified right to an open hearing
• United States v. Payne, 3 M.J. 354 (C.M.A. 1977): ex parte contact with the hearing officer is presumed prejudicial

Related guides

• Your Rights at an Article 32: Counsel, Cross-Examination, and Presenting Evidence
• Witnesses and the Alleged Victim at an Article 32
• The PHO Report, Objections, and Article 32 Defects
• The Article 34 advice process
• Pretrial Stages of a Court-Martial
• Summary, Special, and General Courts-Martial Compared
• Article 15 vs. Court-Martial: Consequences Compared
• United States v. Garcia: Article 32 Waiver Is Personal to the Accused
• What to Do After Receiving Notice of a Military Investigation
• Attack the Evidence, Not the Investigator: AR 15-6 Rebuttal Strategy

Talk to a military defense lawyer

Gonzalez & Waddington defends service members worldwide in investigations, courts-martial, administrative separation boards, and other UCMJ matters. Michael Waddington, a former Army JAG officer, has been a lawyer for over 25 years. Call 1-800-921-8607 or visit ucmjdefense.com for a confidential consultation.

This article is general information, not legal advice. Every case is different, and reading it does not create an attorney-client relationship.