Article 32 Preliminary Hearing: Should You Waive It?

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A lot of advice about the Article 32 is out of date.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

Do not sign anything waiving your Article 32 hearing until you have talked with a defense lawyer.
Ask your lawyer what evidence the government has disclosed and what is still missing.
Give your lawyer names of witnesses, messages, and documents that could support a defense submission.
Do not discuss the case with anyone, and do not contact the accuser or witnesses.
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.

Video transcript

Transcript of the video “What Is an Article 32 Hearing? Should You Waive It? | Military Lawyer Explains,” with Michael Waddington of Gonzalez & Waddington.

Read the full transcript of this video

What is an Article 32 preliminary hearing and should you waive it? It is the military’s probable cause hearing before a general court-martial. But today’s Article 32 is not a mini trial and it is not what many service members think it is. In some cases, waiving it may actually be the smarter strategic decision. I’m Michael Waddington, civilian military defense lawyer and co-founder of Gonzalez & Waddington.

The Article 32 changed dramatically in 2014 and again in 2019. And a lot of the advice people still repeat about these hearings is based on the old system. Here’s how it actually works now. Under Article 32 of the UCMJ and Rule for Courts-Martial 405, before charges can normally be referred to a general court-martial, there must be a preliminary hearing unless the accused waives it. A preliminary hearing officer, almost always a judge advocate, presides.

The hearing has four basic purposes: determine whether there is probable cause to believe an offense was committed and that you committed it, determine whether the court has jurisdiction, consider whether the charges are properly drafted, and recommend what should happen to the case. The officer prepares a report, but that recommendation is not binding. Here’s the important part. An Article 32 is not a trial. It is not even close.

It is a limited, relatively informal preliminary hearing. The government usually presents documents, investigative reports, statements, and sometimes testimony from an investigator or another witness. Hearsay can be considered. The alleged victim can decline to testify and in many cases does. The defense does not automatically get to call every witness it wants, conduct a full cross-examination of the complaining witness, or litigate the entire case.

The old Article 32 was much broader. Defense lawyers could use it almost like a pretrial investigation. That is no longer the system. Today, the Article 32 can sometimes feel less like a meaningful obstacle and more like a speed bump on the way to trial. If the government is determined to prosecute, particularly in a serious case, the probable cause standard is relatively low.

Even when the defense identifies weaknesses, the government may simply use the hearing to learn where its case is vulnerable and then try to repair those weaknesses before trial. That is why waiver deserves serious consideration. Suppose you are facing an Article 120 sexual assault allegation. The alleged victim is committed to proceeding. The special trial counsel is determined to prosecute.

Everyone involved understands that this case is probably going to a court-martial regardless of what happens at the Article 32. You now have to ask a strategic question. What do you gain by showing the prosecution your best arguments months before trial? If you reveal a flaw in the investigation, they may send CID, NCIS, OSI, or CGIS back out to investigate it. If you expose an inconsistency in a witness statement, prosecutors may prepare the witness to explain it.

If you identify a missing piece of evidence, they may go find it. If you reveal your theory of the case, they now know what is coming. In other words, sometimes a strong Article 32 defense does not stop the prosecution. It simply teaches the government how to make its case better. That is one of the strongest arguments for waiver.

Sometimes the better strategy is to keep your powder dry. Save the best impeachment. Save the strongest inconsistencies. Save the investigative failures. Save the weaknesses in the forensic evidence.

Save the defense theory and use them when they matter most at trial, when the government may no longer have months to repair the damage. That does not mean you should automatically waive an Article 32. There can still be important reasons to have the hearing. If the government presents a witness, you may get sworn, recorded testimony that can later be used for impeachment. The hearing may reveal evidence or investigative theories you did not previously know about.

A preliminary hearing officer may identify serious problems with the case or recommend a different disposition. And in the right case, particularly where the government is genuinely undecided about whether to proceed, the defense may be able to use the Article 32 to influence that decision. But those advantages have to be weighed against what you are giving away. That analysis becomes especially important in serious sexual assault cases. If the prosecution is hell-bent on going forward, the alleged victim is committed to trial, and there is little realistic chance that an Article 32 hearing will stop referral, you need to think very carefully before handing the prosecution a road map to your defense.

Sometimes you want the hearing. Sometimes you want the testimony. Sometimes you want the government to show its hand. And sometimes the better move is to waive the hearing, reveal nothing, and make the government confront the weaknesses in its case for the first time when 12 [8 in non-capital cases] members are sitting in the courtroom. That is not a decision a service member should make alone.

It is a strategy decision that should be made with experienced defense counsel after reviewing the evidence, the likely witnesses, the posture of the prosecution, and exactly what you expect to gain or lose from the hearing. What happens if you do have the hearing? Your lawyer appears with you. The government presents the evidence it wants the hearing officer to consider, usually documents, investigative materials, and sometimes witnesses. Your lawyer can challenge the evidence, cross-examine witnesses who actually testify, and present appropriate defense evidence and argument.

But again, this is not a trial. The rules are different, the standard is different, and the government may have an opportunity afterward to correct weaknesses that the defense exposes. So, what is an Article 32 preliminary hearing and should you waive it? It is a limited probable cause hearing before a general court-martial, not a mini trial. And whether you should waive it depends on strategy.

If the hearing can realistically help you, use it. But if the case is going to trial regardless, there are situations where giving the prosecution an advanced look at your strongest ammunition may do more harm than good. I’m Michael Waddington with Gonzalez & Waddington. We defend service members worldwide. You can learn more at ucmjdefense.

com or call 1-800-921-8607 for a free, confidential consultation.

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.

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

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.