Subchapter VI · Pre-trial Procedure

Article 32. Preliminary hearing required before referral to general court-martial

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes Cited by (35)
(a) IN GENERAL.—
(1)
(A) Except as provided in subparagraph (B), a preliminary hearing shall be held before referral of charges and specifications for trial by general court-martial. The preliminary hearing shall be conducted by an impartial hearing officer detailed in accordance with subparagraph (C).
(B) Under regulations prescribed by the President, a preliminary hearing need not be held if the accused submits a written waiver to—
(i) except as provided in clause (ii), the convening authority and the convening authority determines that a hearing is not required; and
(ii) with respect to charges and specifications over which the special trial counsel is exercising authority in accordance with section 824a of this title (article 24a), the special trial counsel and the special trial counsel determines that a hearing is not required.
(C)
(i) Except as provided in clause (ii), the convening authority shall detail a hearing officer.
(ii) If a special trial counsel is exercising authority over the charges and specifications subject to a preliminary hearing under this section (article), the special trial counsel shall request a hearing officer and a hearing officer shall be provided by the convening authority, in accordance with regulations prescribed by the President.
(2) The purpose of the preliminary hearing shall be limited to determining the following:
(A) Whether or not the specification alleges an offense under this chapter.
(B) Whether or not there is probable cause to believe that the accused committed the offense charged.
(C) Whether or not the convening authority has court-martial jurisdiction over the accused and over the offense.
(D) A recommendation as to the disposition that should be made of the case.
(b) HEARING OFFICER.—
(1) A preliminary hearing under this section shall be conducted by an impartial hearing officer, who—
(A) whenever practicable, shall be a judge advocate who is certified under section 827(b)(2) of this title (article 27(b)(2)); or
(B) when it is not practicable to appoint a judge advocate because of exceptional circumstances, is not a judge advocate so certified.
(2) In the case of a hearing officer under paragraph (1)(B), a judge advocate who is certified under section 827(b)(2) of this title (article 27(b)(2)) shall be available to provide legal advice to the hearing officer.
(3) Whenever practicable, the hearing officer shall be equal in grade or senior in grade to military counsel who are detailed to represent the accused or the Government at the preliminary hearing.
(c) REPORT TO CONVENING AUTHORITY OR SPECIAL TRIAL COUNSEL.— After a preliminary hearing under this section, the hearing officer shall submit to the convening authority or, in the case of a preliminary hearing in which the hearing officer is provided at the request of a special trial counsel to the special trial counsel, a written report (accompanied by a recording of the preliminary hearing under subsection (e)) that includes the following:
(1) For each specification, a statement of the reasoning and conclusions of the hearing officer with respect to determinations under subsection (a)(2), 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.
(2) Recommendations for any necessary modifications to the form of the charges or specifications.
(3) An analysis of any additional information submitted after the hearing by the parties or by a victim of an offense, that, under such rules as the President may prescribe, is relevant to disposition under sections 830 and 834 of this title (articles 30 and 34).
(4) A statement of action taken on evidence adduced with respect to uncharged offenses, as described in subsection (f).
(d) RIGHTS OF ACCUSED AND VICTIM.—
(1) The accused shall be advised of the charges against the accused and of the accused’s right to be represented by counsel at the preliminary hearing under this section. The accused has the right to be represented at the preliminary hearing as provided in section 838 of this title (article 38) and in regulations prescribed under that section.
(2) The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence that is relevant to the issues for determination under subsection (a)(2).
(3) A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing. A declination under this paragraph shall not serve as the sole basis for ordering a deposition under section 849 of this title (article 49).
(4) The presentation of evidence and examination (including cross-examination) of witnesses at a preliminary hearing shall be limited to the matters relevant to determinations under subsection (a)(2).
(e) RECORDING OF PRELIMINARY HEARING.— A preliminary hearing under subsection (a) shall be recorded by a suitable recording device. The victim may request the recording and shall have access to the recording under such rules as the President may prescribe.
(f) EFFECT OF EVIDENCE OF UNCHARGED OFFENSE.— If evidence adduced in a preliminary hearing under subsection (a) indicates that the accused committed an uncharged offense, the hearing officer may consider the subject matter of that offense without the accused having first been charged with the offense if the accused—
(1) is present at the preliminary hearing;
(2) is informed of the nature of each uncharged offense considered; and
(3) is afforded the opportunities for representation, cross-examination, and presentation consistent with subsection (d).
(g) EFFECT OF VIOLATION.— The requirements of this section are binding on all persons administering this chapter, but failure to follow the requirements does not constitute jurisdictional error. A defect in a report under subsection (c) is not a basis for relief if the report is in substantial compliance with that subsection.
(h) VICTIM DEFINED.— In this section, the term “victim” means a person who—
(1) is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification being considered; and
(2) is named in one of the specifications.
Cross-referencesCited by 35Cites 6Elsewhere 1
Cited by

Provisions elsewhere in the Manual whose text cites Article 32. Each link opens the citing provision.

Rules for Courts-Martial
R.C.M. 309(b)(9)(A)(i) — Pre-referral judicial proceedings
Articles 6b or 32;
R.C.M. 401A(c)(1) — Disposition of charges over which a special trial counsel exercises authority and has not deferred
…specification thereunder to a special or general court-martial. If a preliminary hearing in accordance with Article 32 and R.C.M. 405 is required, a special trial counsel shall request a hearing officer and a hearing officer…
Discussion under R.C.M. 405(a) — Preliminary hearing
…of the preliminary hearing officer are advisory. Failure to substantially comply with the requirements of Article 32, which failure prejudices the accused, may result in delay in disposition of the case or disapproval of the…
R.C.M. 405(d)(1) — Preliminary hearing
As soon as practicable but no later than five days after direction of an Article 32 preliminary hearing, counsel for the Government shall provide the defense with copies of, or, if…
R.C.M. 405(d)(1)(A) — Preliminary hearing
the order directing the Article 32 preliminary hearing pursuant to this rule (R.C.M. 405);
Discussion under R.C.M. 405(k)(5) — Preliminary hearing (32(e))
See Article 32(e)-(h), UCMJ.
Discussion under R.C.M. 406(a)(1)(D) — Pretrial advice and special trial counsel determinations
…of the case by commanders or others who have forwarded the charges; and any recommendations of the Article 32 preliminary hearing officer. However, there is no legal requirement to include such information, and failure…
…concern disclosure of other specific matters. See R.C.M. 308 (identification of accuser), 405 (report of Article 32 preliminary hearing), 706(c)(3)(B) (mental examination of accused), 914 (production of certain statements),…
R.C.M. 703(g)(3)(B) — Production of witnesses and evidence
…for inspection by the parties. A subpoena shall not command any person to attend or give testimony at an Article 32 preliminary hearing.
Discussion under R.C.M. 703(g)(3)(C)(i) — Production of witnesses and evidence
…(g)(3)(D)(v) of this rule for the production of evidence not under control of the government for use at an Article 32 preliminary hearing. See also R.C.M. 405.
R.C.M. 705(c)(2)(E) — Plea agreements
A promise to waive procedural requirements such as the Article 32 preliminary hearing, the right to trial by a court-martial composed of members, the right to request trial…
…trial counsel agrees to withdraw certain specifications, or if the accused agrees to waive the right to an Article 32 preliminary hearing or the right to elect sentencing by members, this should be stated. The written…
R.C.M. 706(c)(3)(A) — Inquiry into the mental capacity or mental responsibility of the accused
…the accused’s commanding officer, the preliminary hearing officer, if any, appointed pursuant to Article 32, and to all government and defense counsel in the case, the convening authority, and, after referral, to the…
R.C.M. 707(c)(1) — Speedy trial
…with authority over the accused for resolution. The convening authority may delegate this authority to an Article 32 preliminary hearing officer. After referral, such requests for pretrial delay will be submitted to the…
…for an oath in preferral of charges. See R.C.M. 405 and 702 concerning the requirements for an oath in Article 32 preliminary hearings and depositions. An accused making an unsworn statement is not a “witness.” See…
Discussion under R.C.M. 905(b)(1) — Motions generally
Such nonjurisdictional defects include unsworn charges, inadequate Article 32 preliminary hearing, and inadequate pretrial advice. See R.C.M. 307, 401–407, 601–604, 906(b)(3).
R.C.M. 906(b)(3) — Motions for appropriate relief
Corrections. Correction of defects in the Article 32 preliminary hearing, pretrial advice, or a written determination by special trial counsel.
Discussion under R.C.M. 914(a)(2) — Production of statements of witnesses
…by voluntary disclosure before arraignment. This rule does not apply to preliminary hearings under Article 32. As to procedures for certain government information as to which a privilege is asserted, see Mil. R. Evid.…
Discussion under R.C.M. 919(b) — Argument by counsel on findings
…counsel may not comment on the failure of the defense to call witnesses or of the accused to testify at the Article 32 preliminary hearing or upon the probable effect of the court-martial’s findings on relations between the…
R.C.M. 1112(f)(2)(A) — Certification of record of trial; general and special courts-martial
The preliminary hearing report under Article 32, if any;
R.C.M. 1113(b)(1) — Sealed exhibits, proceedings, and other materials
…or rules of professional conduct: the judge advocate advising the convening authority who directed the Article 32 preliminary hearing; the convening authority who directed the Article 32 preliminary hearing; the staff…
Military Rules of Evidence
Mil. R. Evid. 505(e)(2) — Classified information
An Article 32 preliminary hearing officer may not rule on any objection by the accused to the release of documents or…
Mil. R. Evid. 804(b)(1) — Exceptions to the rule against hearsay - when the declarant is unavailable as a witness
…court-martial, court of inquiry, military commission, other military tribunal, or preliminary hearing under Article 32 is admissible under subdivision (b)(1) if the record of the testimony is a verbatim record.
Mil. R. Evid. 1101(d)(2) — Applicability of these rules
preliminary hearings under Article 32;
UCMJ Punitive Articles
…includes a trial by court-martial, and course of justice includes preliminary hearings conducted under Article 32. If the accused is charged with having committed perjury before a court-martial, it must be shown that the…
…of justice—for example, if a witness signs under penalty of perjury summarized testimony given at an Article 32 preliminary hearing. It is not required that the document be sworn before a third party. Section 1746 does…
Article 131d, ¶ 85.b.(1) — Wrongful refusal to testify
…board of officers, military commission, court of inquiry, an officer conducting a preliminary hearing under Article 32, or an officer taking a deposition, of or for the United States, at which a certain person was presiding;
Article 131d, ¶ 85.e. — Wrongful refusal to testify
…(board of officers) (military commission) (court of inquiry) (officer conducting a preliminary hearing under Article 32, Uniform Code of Military Justice) (officer taking a deposition) (_____) (of) (for) the United States, of…
Uniform Code of Military Justice
Art. 2(d)(1)(A) — Persons subject to this chapter
a preliminary hearing under section 832 of this title (article 32);
Art. 6b(a)(2)(B) — Rights of the victim of an offense under this chapter
A preliminary hearing under section 832 of this title (article 32) relating to the offense.
Art. 6b(e)(1) — Rights of the victim of an offense under this chapter
…of an offense under this chapter believes that a preliminary hearing ruling under section 832 of this title (article 32) or a court-martial ruling violates the rights of the victim afforded by a section (article) or rule…
Art. 6b(e)(4)(B) — Rights of the victim of an offense under this chapter
Section 832 (article 32)of this title.
Art. 10(b)(2) — Restraint of persons charged
…specifications and, if applicable, the preliminary hearing report submitted under section 832 of this title (article 32).
Art. 34(d)(2) — Advice to convening authority before referral for trial (32(c))
…to conform to the substance of the evidence contained in a report under section 832(c) of this title (article 32(c)).
Art. 38(b)(1) — Duties of trial counsel and defense counsel
…before a general or special court-martial or at a preliminary hearing under section 832 of this title (article 32) as provided in this subsection.
Article 32 cites

Provisions named in the text of Article 32. Where the cited provision is on this site, the link opens it.

Elsewhere on this site
Court-martial process overview
Stage: Article 32 preliminary hearing