Witnesses and the Alleged Victim at an Article 32

The production framework

The Article 32 is not a mini-trial, and the witness rules reflect that. Under R.C.M. 405(h), each side must give the preliminary hearing officer and the opposing party advance notice of the witnesses it intends to call and the evidence it intends to offer. When the defense wants the government to produce a witness, the sequence runs:

1. Defense counsel gives trial counsel a written list of requested witnesses and the form of testimony sought (in person, telephone, or video).
2. Trial counsel responds — agreeing, or objecting on the ground that the witness is not relevant, is cumulative, or is unnecessary to the hearing’s purposes.
3. If trial counsel objects, the defense may ask the PHO to decide whether the witness is relevant, not cumulative, and necessary.

That three-part standard controls everything at this stage, and it is narrower than trial production under R.C.M. 703 — a distinction the defense can turn to advantage by framing each request around the hearing’s four purposes: the sufficiency of the specifications, probable cause, jurisdiction, and disposition. The purposes themselves are explained in the main Article 32 guide.

Military witnesses

When a defense-requested military witness clears the standard — either because the government does not object or because the PHO so determines — trial counsel asks the witness’s commander to make the service member available. R.C.M. 405(h)(2)(A). Two features of this rule surprise people:

• The commander’s decision is final. The commander weighs “operational necessity or mission requirements” and decides whether the witness appears at all — and if so, whether in person, by telephone, or by other remote means.
• Remote testimony is the norm, not the exception. A deployed or geographically distant witness will very often testify by video or phone rather than in person.

For the defense, this means witness requests should be built to survive a commander’s availability review: state precisely what the witness will say, tie it to probable cause or disposition, and propose remote testimony as a fallback so that “unavailable in person” never becomes “unavailable entirely.”

Civilian witnesses

Civilian witnesses stand on different footing: at the preliminary-hearing stage they cannot be compelled to appear. If a requested civilian witness passes the production standard, trial counsel invites the witness to testify — and the witness decides. R.C.M. 405(h)(2)(B). If producing the witness would cost money, the convening authority decides whether testimony will be in person or remote.

The compulsion gap has a partial workaround on the evidence side: for documents and other materials not under government control, the trial counsel can seek a pre-referral investigative subpoena, and if the PHO determines defense-requested evidence meets the standard and trial counsel refuses to seek the subpoena, that refusal — with reasons — must be documented in the PHO’s report. R.C.M. 405(h)(3)(B). A refusal memorialized in the report is ammunition the defense can use with the referral authority and, later, the military judge.

Witness immunity follows its own channel: only a general court-martial convening authority (or designee) can immunize a witness for the hearing. R.C.M. 704(c).

The named victim’s rights — and the right not to testify

The Military Justice Act era rewrote the victim’s role at the Article 32. A “victim” for these purposes is a person who suffered direct physical, emotional, or pecuniary harm from the alleged misconduct. R.C.M. 405(g). The named victim has the right to:

• reasonable, accurate, and timely notice of the hearing;
• confer with trial counsel;
• not be excluded from public portions of the hearing, absent specific findings;
• receive, on request after the court-martial ends, the recording or a redacted transcript of the hearing; and — critically —
• decline to testify. A named victim who declines cannot be required to testify at the preliminary hearing. Art. 32(d)(3), UCMJ; R.C.M. 405(h)(2)(A)(iii).

That last rule is the single biggest strategic shift from the old Article 32 “investigation,” where defense cross-examination of the complaining witness was routine. Today, in most contested sexual assault cases the alleged victim does not testify at the hearing, and the government proceeds on statements, investigative reports, and other evidence the PHO finds reliable. The defense loses an early cross-examination — but the government also forgoes the chance to preserve sworn testimony, which matters if the witness later becomes unavailable or changes their account. An experienced defense team plans for both branches of that tree.

M.R.E. 412 at the hearing

In any proceeding involving an alleged sexual offense, evidence of a victim’s other sexual behavior or sexual predisposition is presumptively inadmissible at the preliminary hearing. R.C.M. 405(i)(2) admits such evidence only when two conditions are both met:

1. the evidence is either (a) specific instances offered to prove that someone other than the accused was the source of semen, injury, or other physical evidence, or (b) specific instances of behavior with the accused offered to prove consent (or offered by the prosecution); and
2. the evidence is relevant, not cumulative, and necessary to the hearing’s purposes.

The procedure is strict: written notice by motion at least five days before the hearing, service on the victim and victim’s counsel, and — if the PHO does not simply deny the motion — a closed admissibility hearing held at the end of the preliminary hearing, with the motions and record sealed under R.C.M. 1113. Blowing the notice deadline can forfeit the issue for the hearing entirely.

Documents and physical evidence

Evidence production tracks the witness rules. R.C.M. 405(h)(3): the defense lists what it wants produced; trial counsel agrees or objects under the same relevant/not-cumulative/necessary standard; the PHO resolves disputes. Evidence under government control is obtained by trial counsel from the custodian; evidence outside government control may require the pre-referral subpoena discussed above. One hard limit binds the PHO:

“may not order the production of any privileged matters; however, when a party offers evidence that an opposing party claims is privileged, the [PHO] may rule on whether a privilege applies.”R.C.M. 405(h)(3)(A)(iii), (B)(iv)

Open vs. closed hearings

Article 32 hearings are ordinarily open to the public, and both the accused and the press hold a qualified right to keep them open. Closure requires (1) an overriding interest, (2) a narrowly tailored closure, (3) a finding that no lesser alternative suffices, and (4) written findings of fact included in the report. R.C.M. 405(j)(3). The leading case, ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997), struck down the wholesale closure of a high-profile hearing, demanding a “reasoned, not reflexive” determination made witness-by-witness and circumstance-by-circumstance. Improper closure is a defect the defense can raise — on a tight clock, covered in the report and defects guide.

Frequently asked questions

Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.