Article 32, Uniform Code of Military Justice (UCMJ), requires that a preliminary hearing be conducted before criminal charges may be referred to general court-martial for trial. A “preliminary hearing” or “Article 32 hearing”, as it is colloquially referred to, is an important pretrial milestone which offers an accused with his or her first real look into the Government’s case against them and provides important due process rights.
Military Justice Attorneys has represented service members facing charges for some of the most serious offenses under the UCMJ and understands how to effectively represent service members at an Article 32 preliminary hearing. If you are under investigation, pending court-martial, or believe that you may soon face a preliminary hearing, contact one of our military defense lawyers today to learn more about your rights.
Authority for a Preliminary Hearing
Article 32, UCMJ, 10 U.S.C. § 832, requires that a preliminary hearing be conducted before criminal charges may be referred to general court-martial for trial. Mandated by federal law, a preliminary hearing is required unless an accused submits a written waiver to the convening authority and the convening authority determines that a hearing is not required.
Rule for Court-Martial (R.C.M.) 405 implements the UCMJ requirement for a preliminary hearing and describes in detail its process.
Purpose of a Preliminary Hearing
Generally speaking, a preliminary hearing is designed to determine whether a court-martial against the accused is warranted. In order to make this determination, the hearing is required to answer three main questions:
- Whether or not the charges and specifications allege an offense under the UCMJ;
- Whether or not there is probable cause to believe that the accused committed the offense(s) charged; and
- Whether or not the convening authority has court-martial jurisdiction over the accused and over the offense.
If these questions are answered in the negative—i.e. that the charges do not allege an offense under the UCMJ, that there is not probable cause, or that the convening authority does not have jurisdiction over the accused or over the offense—that could convince a convening authority to not refer charges to court-martial.
In addition to answering these questions, a preliminary hearing may also serve as a useful pretrial discovery tool, allowing the accused to gain some insight into the government’s case. This may include the defense being granted access to some investigative files and, in limited instances, having the opportunity to question government witnesses.
Unfortunately, in recent years MJA has seen prosecutors become far less willing to provide full discovery or put on any testimonial evidence that could be cross-examined. While preliminary hearings have generally become more sanitized and less helpful for the defense, an accused should not be quick to waive the hearing until he or she has fully discussed all collateral consequences with their defense counsel.
Preliminary Hearing Officer (PHO)
A hearing under Article 32, UCMJ, is conducted by a preliminary hearing officer (PHO). Whenever practicable, a preliminary hearing officer should be a certified judge advocate. When it is not practical to appoint a judge advocate, the convening authority may detail an impartial commissioned officer to conduct the investigation.
The preliminary hearing officer is intended to be a neutral and impartial figure and does not represent either the government or the defense. In fact, R.C.M. 405 explicitly directs that the “preliminary hearing officer shall not depart from an impartial role and become an advocate for either side.” The preliminary hearing officer must be equal in grade or senior in grade to the military counsel detailed to represent the accused or the government counsel at the preliminary hearing.
The preliminary hearing officer is responsible for hearing all the evidence, ruling on questions of admissibility, and submitting a report to the convening authority. A report to the convening authority must include, at a minimum, the following:
- For each specification, a statement of the reasoning and conclusions of the hearing officer with respect to the three required questions discussed earlier, including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations of the hearing officer concerning the testimony of witnesses and the availability and admissibility of evidence at trial.”
- Recommendations for any necessary modifications to the form of the charges or specifications.
- An analysis of any additional information submitted after the hearing by the parties or by a victim of an offense, that is relevant to UCMJ Articles 30 and 34.
- A statement of action taken on evidence adduced with respect to uncharged offenses.
The fourth requirement, dealing with uncharged offenses, allows the preliminary hearing officer to investigate allegations of misconduct which are not even on the charge sheet and recommend whether or not additional charges should be referred to court-martial.
Despite the specificity of these requirements, a preliminary hearing officer’s report is not binding on a convening authority. As a result, a convening authority may refer charges to court-martial regardless of the preliminary hearing officer’s findings and recommendations.
General Procedures of Preliminary Hearing
A preliminary hearing is only required when the charges appear serious enough to warrant a general court-martial. The process begins when the accused’s commanding officer or commanding general appoints a preliminary hearing officer. Soon after the preliminary hearing officer is appointed, the hearing date will be set. The accused is required to attend the hearing along with their defense counsel.
During the preliminary hearing, the preliminary hearing officer will first read the charges against the accused. The preliminary hearing officer will then review the non-testimonial evidence against the defense, examine witnesses on both sides, and ask the accused if he wants to make a sworn or an unsworn (not under oath) statement to the court.
Limited rules of evidence apply during a preliminary hearing. These included Military Rule of Evidence (M.R.E.) 301-303 and 305; M.R.E. 412(a); and portions of rules dealing with privileges such as M.R.E. 505, 506, and 514(d)(6). Preliminary hearings are public proceedings and remain open to the public whenever possible. In limited circumstances, the preliminary hearing officer or convening authority may restrict or close a hearing if “there is an overriding interest that outweighs the value of an open preliminary hearing.”
Once the hearing is over, parties sometimes submit supplemental written matters to the preliminary hearing officer for consideration. After reviewing all the evidence and arguments, the preliminary hearing officer will give their written report of the Article 32 hearing to the commanding officer/general. The commander will then decide whether the case should be referred to a general court-martial.
Prior to making this decision, the convening authority’s staff judge advocate (SJA) is required under Article 34, UCMJ, to provide legal advice to the convening authority in writing. The SJA must advise the convening authority that: (A) the specification alleges an offense under the UCMJ; (B) there is probable cause to believe that the accused committed the offense charged; and (C) a court-martial would have jurisdiction over the accused and the offense.
Your Rights as the Defendant
It’s important to understand your rights at a preliminary hearing.
First of all, you have the right to waive the hearing entirely, which may happen as a condition of a plea bargain. Whether or not to waive preliminary hearing is an important decision that will depend on case specific facts and circumstances, including the charges themselves. This decision should only be made after you have consulted with your attorney about the costs and benefits. However, an accused’s written waiver is not binding. A convening authority may determine that a preliminary hearing is required and order it to take place, despite the accused’s waiver.
If you don’t waive the hearing, you have the right to attend the investigative hearing at every stage of the process. You also have the right to retain legal representation, to present your own evidence and call your own witnesses at the hearing, and to read the investigative report, to name a few. R.C.M. 405 states that at any preliminary hearing the “accused shall have the right to:
- Be advised of the charges under consideration;
- Be represented by counsel;
- Be informed of the purpose of the preliminary hearing;
- Be informed of the right against self-incrimination under Article 31;
- Except in certain circumstances, be present throughout the taking of evidence;
- Cross-examine witnesses on matters relevant to the issues for determination;
- Present matters relevant to the issues for determination; and
- Make a sworn or unsworn statement relevant to the issues for determination.
R.C.M. 405 provides a process for the defense to request the production of witnesses to testify at the preliminary hearing or produce documentary evidence under the control of the government. Evidence not under the government’s control may be obtained through a pre-referral investigative subpoena issued by a military judge or trial counsel.
Because the Article 32 hearing will establish the next stage of the legal process against you, it’s imperative that you are represented by an experienced military lawyer.
Contact MJA Today
Military Justice Attorneys has represented service members facing charges for some of the most serious offenses under the UCMJ and understands how to effectively represent service members at an Article 32 preliminary hearing. If you are under investigation, pending court-martial, or believe that you may soon face a preliminary hearing, contact one of our military defense lawyers today to learn more about your rights.
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