Article 32 Preliminary Hearing in Mount Pleasant

How Article 32 Hearings Work in Mount Pleasant, South Carolina

Article 32 of the Uniform Code of Military Justice requires a preliminary hearing before charges or specifications may be referred to a general court-martial, unless the accused waives the hearing. It isn’t required before referral to a special or summary court-martial. Service members at Joint Base Lindsey Graham may encounter this process when their command is considering referral.

The 2014 and 2019 changes to military law narrowed Article 32 proceedings from broad investigations to limited preliminary hearings. Under Rule for Courts-Martial 405(e)(1), the hearing addresses four defined subjects.

The preliminary hearing officer considers:

• Whether each specification alleges an offense under military law.
• Whether probable cause exists, meaning there’s a reasonable basis to believe an offense occurred and the accused committed it.
• Whether the convening authority, the commander or other authorized official who makes specified court-martial decisions, has jurisdiction over the case.
• What disposition should be recommended for the charges.

The hearing isn’t a trial and doesn’t determine guilt or innocence. The testimony, documentary evidence, and procedural record may still help counsel assess the government’s allegations before the referral decision.

The Hearing Officer & the Accused’s Rights

Whenever practicable, an impartial judge advocate who’s equal or senior in grade to the attorneys for either side presides over the hearing. If that appointment is impracticable, a commissioned officer who doesn’t hold that qualification may serve.

The accused must be advised of the charges and the hearing’s purpose. The accused also has the right to counsel and to remain present throughout the taking of evidence.

Article 31 protects service members against compelled self-incrimination and requires appropriate warnings before certain official questioning. The accused must be informed of this right during the Article 32 process. Counsel may also question witnesses who testify, although the rules don’t guarantee that every requested witness will appear.

Requesting Witnesses & Documentary Evidence

Rule for Courts-Martial 405(h)(2) and 405(h)(3) permit the defense to request witnesses and documentary evidence under government control. Trial counsel must respond by addressing whether the proposed material is relevant, cumulative, or necessary.

A witness or document request isn’t automatically granted. The applicable rules, the evidence sought, and the presiding officer’s determinations affect what will be produced or considered. Counsel can use the request process to identify evidence related to probable cause, jurisdiction, the sufficiency of a specification, or the recommended disposition.

Deciding Whether to Waive the Hearing

The decision to waive an Article 32 preliminary hearing belongs personally to the accused. Counsel can explain the legal and strategic considerations but can’t waive the hearing on the service member’s behalf.

Waiver isn’t inherently beneficial or harmful. The appropriate decision depends on the allegations, available evidence, witness issues, and defense strategy in the individual case. A convening authority may also direct that a hearing occur despite the accused’s waiver.

What Happens After an Article 32 Hearing

After the hearing, the presiding officer prepares a written report addressing the required issues and recommending a disposition. The report is advisory and doesn’t bind the staff judge advocate or the official responsible for deciding whether and how the charges should proceed.

Charges may be referred for trial even if the report finds no probable cause. The report and evidence developed during the hearing can nevertheless inform later defense decisions as the case moves toward or beyond a referral determination.

Article 32(g) states that a failure to follow Article 32 requirements isn’t jurisdictional error. A procedural defect generally doesn’t, by itself, invalidate a later court-martial. Counsel can assess the defect, preserve appropriate objections, and identify any remedy available under the governing rules.