Understanding an Article 32 Hearing and Its Role in a General Court-Martial

By Stephanie Kral | January 11, 2025

In the Army, Navy, Marine Corps, Air Force, and Space Force military justice system, an Article 32 hearing serves a critical role. This proceeding stems from Article 32 of the Uniform Code of Military Justice (UCMJ) and functions as a procedural safeguard to determine whether sufficient evidence exists to warrant a trial by general court-martial. Below is a detailed breakdown of what an Article 32 hearing entails and where it fits within the general court-martial process.

What is an Article 32 Hearing?

An Article 32 hearing is a pre-trial investigation required before charges are referred to a general court-martial. Its primary purpose is to determine:

Whether there is probable cause to believe the accused committed the offense of offenses charged;
Whether there is jurisdiction over the accused; and
Making a recommendation as to disposition of the offenses..

Key Features of an Article 32 Hearing

Investigating Officer (IO): Unlike a civilian grand jury proceeding, which is typically led by a group of citizens, an Article 32 hearing is overseen by an impartial investigating officer who reviews evidence and makes recommendations. Under the rules, the Investigating Officer must be an impartial judge advocate that is equal or senior in grade to the military counsel detailed to represent the accused and the government.
Legal Representation: The accused has the right to be represented by military defense counsel at no cost or civilian counsel at their own expense.
Witness Testimony and Evidence: Both sides may present evidence and call witnesses. Cross-examination is permitted, giving the defense an opportunity to challenge the prosecution’s claims.
Recommendation: The investigating officer does not make a final determination of guilt but provides a recommendation to the convening authority or special trial counsel regarding whether the case should proceed to a general court-martial. The investigating officer may also recommend lesser actions, such as a special-court martial, dismissal of all or some charges, or disposition via other administrative actions.

Where Does the Article 32 Hearing Fit in the General Court-Martial Process?

The Article 32 hearing is a pivotal step early in the general court-martial process. Below is an overview of the key stages in a general court-martial:

Preferral of Charges: The formal charges are drafted and served to the accused.
Article 32 Hearing: After charges are preferred, the Article 32 hearing takes place. This step occurs before the convening authority or special trial counsel decides whether to refer the charges to a general court-martial.
Convening Authority or Special Trial Counsel Decision: After reviewing the investigating officer’s recommendation, the convening authority or special trial counsel decides whether to proceed to a general court-martial, dismiss the charges, or opt for alternative actions, such as a special court-martial or non-judicial punishment.
Referral of Charges: If the convening authority or special trial counsel elects to move forward, the case is formally referred to a general court-martial.
General Court-Martial: This is the trial phase where a panel of service members (akin to a jury) or a military judge hear the case and make a determination of whether the accused is guilty or not guilty. The accused is afforded rights comparable to civilian defendants, including the right to remain silent, present evidence, and confront witnesses.

Differences Between Article 32 Hearings and Civilian Preliminary Hearings

While there are similarities between an Article 32 hearing and civilian preliminary hearings, there are notable differences:

Greater Scope: An Article 32 hearing allows for more extensive evidence review and witness testimony compared to some civilian proceedings.
Recommendation, Not Indictment: The hearing officer provides a recommendation rather than issuing an indictment. The final decision on whether to proceed rests with the convening authority or special trial counsel.

The Role of Legal Counsel in an Article 32 Hearing

Marine Court Martial Graphic.

Legal counsel plays a pivotal role in protecting the service member’s rights and shaping the outcome of the hearing. Here’s how:

Challenging the Evidence: A skilled civilian military defense attorney will carefully scrutinize the evidence presented by the prosecution. This includes reviewing witness statements, forensic evidence, and procedural compliance. If there are inconsistencies or weaknesses, legal counsel can highlight these issues, casting doubt on the government’s case.
Cross-Examining Witnesses: During the Article 32 hearing, the defense has the opportunity to cross-examine the prosecution’s witnesses. Effective cross-examination can expose unreliable testimony, identify ulterior motives, and challenge the credibility of key witnesses. An experienced attorney can turn witness testimony into a powerful tool for the defense.
Presenting Defense Evidence: While not required, the defense can present its own evidence at this stage. This might include exculpatory documents, expert witness testimony, or statements that provide context or refute the charges. Legal counsel will determine whether presenting a defense at this stage strengthens or weakens the overall strategy.
Advocating for a Reduction or Dismissal of Charges: One of the primary purposes of the hearing is to assess whether the charges are justified and whether they should proceed to trial. A skilled attorney can argue that certain charges lack merit, leading to their dismissal or reduction before the case ever reaches a court-martial.

The Advantage of Hiring a Civilian Defense Firm

While service members have access to military defense attorneys, there are significant benefits to hiring a civilian military defense firm with expertise in military justice, such as Kral Military Defense:

Unmatched Focus and Resources: Kral Military Defense exclusively handles military justice cases and brings dedicated time, resources, and expertise to your defense.
Broader Legal Strategy: The civilian military attorneys at Kral Military Defense have over 25 years combined experience. We work together on every case. Our sheer level of experience and collaboration gives us the ability to challenge the government’s case with bold, creative defense strategies.
Tailored Client Support: Kral Military Defense only takes as many cases as we can handle with care. This means we provide personalized attention and detailed case preparation, giving service members peace of mind during a stressful process.
Reputation and Experience: Kral Military Defense has a track record of successfully defending service members at every stage of the military justice process, particularly in complex Article 32 hearings.

How Kral Military Defense Can Help You

At Kral Military Defense, we understand the high stakes involved in an Article 32 hearing. Our experienced, all-veteran team works tirelessly to protect your rights and your future. Here’s what sets us apart:

Comprehensive Case Review: We meticulously examine every detail of the government’s case to identify weaknesses and procedural errors.
Aggressive Cross-Examinations: Our attorneys excel at dismantling weak testimony and exposing inconsistencies in the prosecution’s evidence.
Strategic Defense Planning: We develop a defense strategy tailored to your unique circumstances, with a focus on achieving the best possible outcome.
Support Beyond the Hearing: Whether your case proceeds to trial or resolves at the Article 32 stage, we remain committed to advocating for you every step of the way. We have a dedicated Director of Client Relations to help you through the process.

Why An Experienced Civilian Defense Counsel is Essential

Many service members underestimate the importance of the Article 32 hearing, assuming it is a mere formality. However, this hearing can set the tone for the entire case and, in some instances, prevent the case from moving forward altogether. Your Civilian Defense Counsel can:

Clarify Your Rights: Military justice procedures differ significantly from civilian criminal proceedings. Our attorneys will ensure you understand your rights and the potential outcomes at every step.
Provide Strategic Guidance: Our sheer level of experience as military defense attorneys allow us to assess whether it is in your best interest to testify, present evidence, or reserve defense arguments for trial.
Protect Your Future: The findings of the Article 32 hearing can affect your military career, reputation, and long-term opportunities. Effective advocacy at this stage can lead to better outcomes and potentially avoid more serious repercussions.

Key Takeaways

An Article 32 hearing is not simply a checkpoint on the way to trial—it is a vital opportunity to challenge the charges against you and potentially change the trajectory of your case. Attempting to navigate this process without legal representation puts you at a serious disadvantage. By engaging experienced legal counsel—especially a civilian defense firm like Kral Military Defense—you gain a knowledgeable advocate who will protect your interests, challenge the prosecution’s case, and work to secure the best possible outcome.

If you or someone you know is facing an Article 32 hearing in the Army, Navy, Marine Corps, Air Force, or Space Force, contact Kral Military Defense today for a consultation. Early intervention by a skilled military defense attorney can make all the difference in safeguarding your rights and your future.