Gonzalez & Waddington, Attorneys at Law defend service members worldwide in Article 120 sexual assault and Article 120c indecent conduct cases—starting at the Article 32 preliminary hearing. This stage is your first, best chance to shape the evidence, lock in testimony, and build the record that can win at trial or stop weak charges from moving forward.

What Is an Article 32 Hearing? (Purpose & Power)

• Preliminary screen: Tests whether there is probable cause to proceed to court-martial.
• Discovery engine: Early look at the government’s case (reports, witnesses, exhibits).
• Record-builder: Transcripts and exhibits become impeachment gold at trial.
• Influence point: Hearing officer’s recommendations can affect charge referral, forum, and plea posture.

Who’s In the Room? (Key Players & Roles)

• Preliminary Hearing Officer (PHO): Neutral attorney who receives evidence, hears limited testimony, and issues written recommendations.
• Trial counsel (prosecutor): Presents the government’s case and witnesses; responds to defense objections.
• Defense counsel (military & civilian): Cross-examines, calls defense witnesses, and introduces defense exhibits where appropriate.
• Special Victims’ Counsel/Victim’s Counsel: Protects the complainant’s rights; may address privilege and MRE 412/513/514 issues.
• Convening Authority/SJA (post-hearing): Consider the PHO’s report and decide whether and how to refer charges.

Your Rights at Article 32 (Don’t Waive Them Lightly)

• Notice & access: Receive the charge sheet and relevant case materials disclosed pre-hearing.
• Representation: You have the right to military counsel and to retain an experienced civilian Article 120 defense lawyer.
• Cross-examination: Defense can examine government witnesses called; availability of the accuser may vary—preserve objections if unavailable.
• Witnesses & exhibits: PHO can permit defense witnesses/exhibits; argue relevance, necessity, and proportionality.
• Silence: You may attend; you are not required to testify. Decide testimony strategy with counsel.

Scope of the Hearing (What Comes In—and What Usually Doesn’t)

• Probable cause standard: Low threshold, but still requires facts—not speculation.
• Hearsay: Commonly allowed; use that to expose investigative shortcuts and bias.
• Privilege & protections: MRE 412 (sexual behavior), 513 (psychotherapist), and 514 (victim advocate) limit certain evidence; litigate access early and precisely.
• Expert previews: Government may notice SANE/forensic opinions; get your defense experts onboard to frame scientific disputes now.

What the PHO Produces (Why It Matters)

• Written report: Findings on probable cause, recommended charge disposition, forum, and witness lists.
• Transcript/exhibits: Preserve inconsistencies and concessions for trial impeachment and motions.
• Recommendations: Not binding, but influential on the convening authority and staff judge advocate.

Defense Goals at Article 32 (Use It to Win Later)

• Lock the timeline: Pin witnesses to dates, messages, movements (metadata, swipe data, door logs, rideshare, CCTV).
• Expose investigation gaps: Omitted interviews, missing devices, failure to seize exculpatory content.
• Test science early: SANE methodology, injury/no-injury fallacies, BAC estimations, DNA transfer/absence, device forensics.
• Build impeachment: Prior inconsistent statements, motive to fabricate (retaliation, administrative leverage, jealousy), secondary gain.
• Create trial motion fodder: 412/404(b)/513/514 issues, unlawful command influence, discovery violations, spoliation.

Typical Article 32 Flow (Step-by-Step)

1. Notice & disclosures → defense requests outstanding materials; identifies defense witnesses.
2. PHO advisements → scope, procedure, and evidentiary ground rules.
3. Government proffer/case-in-chief → agents, SANE/forensic, complainant (if available), corroborating witnesses.
4. Defense cross & limited defense case → surgical cross to lock testimony; call select witnesses if strategic.
5. Closing submissions → defense argument: insufficiency, reliability concerns, alternative inferences.
6. PHO report → recommendations on charges, forum, and witness lists to the convening authority.

Winning Tactics for Article 120 at Article 32

• Own the digital: Subpoena/lawful requests for complete threads, not screenshots; demand native files and metadata.
• Timeline board: Present a simple visual that exposes gaps in the government story.
• Credibility architecture: Chart inconsistent statements across interviews, texts, and 911/first-report accounts.
• Science translation: Use your expert to explain why “no injury ≠ no consent” and “injury ≠ assault,” and to attack shaky BAC or DNA inferences.
• Preserve objections: Even if overruled, lock the issue for later motions and appellate review.

Common Defense Mistakes (Avoid These)

• Waiving the hearing without a concrete strategic reason (e.g., sensitive 412/513 issues you don’t want previewed).
• No expert involvement until trial—missing the chance to frame science disputes early.
• Over-calling witnesses: Don’t preview your entire trial; focus on locking key government witnesses.
• Letting hearsay slide: Use hearsay to expose investigative shortcuts and demand real corroboration.
• Unfocused cross: Ask only what advances your theme; save argument for submissions and trial.

Defense Outline You Can Drop In (Short Form)

1) Theme: “The story doesn’t add up. The science and the timeline disagree with the accusation.”
2) Timeline Exhibit: Calls, texts, locations, witnesses (one-page visual).
3) Cross Modules:
   - Accuser: timeline anchors, post-event behavior, inconsistencies.
   - Agent: omitted leads, confirmation bias, missing devices, report gaps.
   - SANE/Forensics: methodology, injury/no-injury limits, DNA transfer, BAC assumptions.
4) Requests:
   - Dismiss or limit charges, exclude weak specs, narrow 404(b).
   - Expert funding orders, discovery deadlines, preservation orders.

When (Rarely) to Consider Waiver

• Sensitive privilege issues: You don’t want to preview 412/513 lines before trial motions.
• Global resolution: A negotiated disposition where a hearing risks inflaming referral decisions.
• Witness risk management: Protect critical defense witnesses from preview/cross if the government’s proof is paper-thin.

Always decide waiver with experienced counsel who tries Article 120 cases regularly.

Video: Inside an Article 32 Hearing for Article 120

Arm Yourself Early—Win Later

The Article 32 hearing is where strong cases are built—and weak ones are exposed. We use experts, targeted cross, and digital forensics to shape the record, force discovery, and pressure unjust charges.

Gonzalez & Waddington — ucmjdefense.com — 1-800-921-8607

FAQs: Article 32 in Article 120 Cases