Court-Martial Trial Practice Blog
For those who practiced under the “old” Article 32, UCMJ, it was considered an important stage in whether a person would be prosecuted at a general court-martial. Any military defense counsel who practiced before 2020, they would remember what the original Court of Military Appeals (CMA) (the name has since been changed to U.S. Court of Appeals for the Armed Forces (CAAF) said in 1959 (just nine years after the UCMJ was enacted) that the Article 32 investigation “serves a twofold purpose. It operates as a discovery proceeding for the accused and stands as a bulwark against baseless charges.” In addition, the investigating officer was required to be independent and impartial–a quasi judicial actor, as the CMA said in the Reynolds case.
An Article 32 investigation is intended to establish if “probable-cause” exists before a charge can be referred to a court-martial. The “old” Article 32 hearing was an adversarial hearing where the accused could produce evidence, be represented by counsel, could remain silent, give an unsworn statement, or testify, and counsel could cross-examine witnesses.
Some of the benefits for the accused and military defense counsel included:
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Early Case-theory testing
By exposing factual weaknesses at Article 32, defense counsel gains insight into the government’s trial strategy and can refine their own from the outset. -
Leverage for pretrial negotiations
A strong Article 32 showing may induce the convening authority to offer a pretrial agreement or to dismiss marginal charges. -
Preservation of key issues
Objections or challenges raised at Article 32 (e.g., to evidence or jurisdiction) may bolster later motions or appellate claims. -
Resource for trial preparation
Transcripts, exhibits, and witness lists generated at Article 32 form a ready investigative roadmap for the defense team.
That investigation benefited the prosecution as well as the defense. Sadly, those who decided to change Article 32 failed to understand the basics and how the prosecution team (and alleged victims) could benefit from it. Congress enacted the change to Article 32 because of political pressure.
Sure enough, what many of us military defense counsel said has come true.
The Military Justice Review Panel, established by Congress in Article 146 reported in 2024 how useless Article 32 has become.[1] [2]
The 2023 MJRP Interim Assessment of Preliminary Hearings and Prosecution Standards, concluded that Article 32 hearings are currently of limited utility to the prosecution, defense, and referral authority. On the related issue of the standard by which a convening authority or special trial counsel should refer a case to trial, the Panel recommended adopting a standard for prosecution consistent with the United States Attorney General’s Justice Manual.
The MJRP also assessed and recommended that Congress amend Article 32 with a package of reforms that would “(1) allow for a reasonable level of discovery at the preliminary hearing while retaining victim protections, (2) require a certification process for the preliminary hearing officer, and (3) preclude referral if the preliminary hearing officer determines that a charge lacks probable cause, subject to a right of appeal to a military judge and without prejudice to the government referring the charge anew.”
So how does all of this compare?
1. Historical “Full-Inquiry” Article 32 (Pre-FY14/NDAA 2014 – and thus pre-2019)
Before Congress’s sweeping reforms in the National Defense Authorization Act for FY 2014, Article 32 hearings functioned as evidence-rich, adversarial investigations akin to civilian preliminary hearings or grand juries. Under the Manual for Courts-Martial:
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Broad discovery and fact-finding: The hearing officer could compel production of documents and live testimony from both prosecution and defense witnesses, and the parties could conduct “searching investigations” into every contested fact JAG Legal Center and School.
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Robust adversarial testing: Both counsel examined witnesses under oath, argued evidentiary questions under the Military Rules of Evidence, and developed the theory of the case in real time Dacipad.
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Screening function: A no-probable-cause finding by the preliminary hearing officer would almost always prevent referral to a general court-martial, protecting the accused from baseless charges JAG Legal Center and School.
2. Modern “Probable-Cause-Only” Article 32 (Post-FY14/NDAA 2014 – and post-2019)
Since the FY 2014 amendments took effect (and remain largely in force today), Article 32 hearings have been narrowed to a paper-based probable-cause check:
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Elimination of discovery: Congress expressly removed “discovery” as a purpose of the hearing, limiting evidence to what the government chooses to present by summary or affidavit MJRP.
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Advisory, non-binding recommendations: Even if the preliminary hearing officer finds no probable cause, the convening authority may still refer charges, rendering the hearing’s factual findings largely moot MJRP.
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Decline of live testimony: Empirical data show that live witness appearances plummeted from nearly 98 % of hearings in FY 2014 to about 36 % by FY 2018, as summaries replaced in-person examination JAG Legal Center and School.
3. Core Deficiencies of the Current Article 32 Regime
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Erodes Fairness and Fundamental Rights
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Without meaningful discovery or live testimony, defense counsel cannot test the government’s case before referral, undermining both due-process and the accused’s “bulwark” against unfounded charges DacipadJAG Legal Center and School.
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Fails to Screen Baseless Charges
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Advisory findings mean that specifications lacking probable cause routinely proceed to trial, clogging dockets and subjecting servicemembers to unwarranted stress and expense MJRP.
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Reduces Utility to Convening Authorities
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Referral authorities receive little more than a one-page recommendation, often based on untested summaries, hampering informed disposition decisions MJRP.
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Creates Systemic Inefficiency
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The “paper drill” format shifts fact-finding into the trial phase, prompting last-minute motions, evidentiary hearings, and potential appellate issues—delaying justice and increasing costs
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[1] As of the end of April 2025, it appears the Secretary of Defense has put the Congressionally mandated MJRP in hiatus.