It’s Not Just a Probable Cause Hearing
If you are facing a General Court-Martial for allegations under Article 119b, 120, 120b, 128, 134, or any other serious offense, you have one critical opportunity to stop the prosecution before trial. It’s called the Article 32 hearing, or Preliminary Hearing. It has tremendous potential to end your case early, but most attorneys don’t understand its value.
The Game Has Changed: The OSTC Reality and Defense Strategy
The creation of the Office of Special Trial Counsel (OSTC) centralized authority and gave that office discretion on whether to go forward with a case or pass it back down to the unit and base legal office.
OSTC has unlimited resources. Dedicated prosecutors, investigators, and experts focus exclusively on serious crimes. You’re fighting the government’s best-trained trial lawyers. But this also means you’re dealing with attorneys who can make better decisions about the true value of a case.
Don’t Save Your Best for Last
This is the most critical strategic point your defense team must understand: OSTC is under pressure to maintain a high conviction success rate. Not a tally of wins, but a high percentage of wins. OSTC would rather win four out of five trials after dropping or deferring five cases than win six out of ten.
OSTC will not carry a weak case to trial for optics or just to appease an accuser. If they believe an acquittal is likely, they will drop the case or send it back to command for lower disposition.
Waiting until trial to reveal favorable evidence is an outdated tactic. These days, the defense has to present information early, either before or during the Article 32 hearing, to create real doubt in OSTC’s calculus.
This strategy only works when the defense knows what’s worth divulging and has credibility with OSTC. We have that reputation because we’ve spent decades winning these cases ethically, skillfully, and with appropriate understanding of the prosecution’s perspective.
The Article 32: Diplomacy, Recon, and Persuasion
The government’s primary obligation during the Article 32 process is to establish probable cause. But that’s the least interesting part of the process.
The Article 32 is your best opportunity to influence what the government decides to do next. An Article 32 hearing is about diplomacy, reconnaissance, and reasonable doubt.
Diplomacy: Establishing a working relationship with OSTC and the Preliminary Hearing Officer (PHO), who might be a military judge, to create doubt about the case’s long-term viability.
Recon: Learning the prosecution’s communication style, legal skill, how they view the evidence, and what the victim really wants out of the case.
Rapport: Building rapport and trust with the accused and their appointed counsel. The Article 32 hearing is the first real chance to get the client comfortable with the courtroom, the formal military justice process, and the defense team.
Demonstrate Reasonable Doubt: By rule, the preliminary hearing officer is encouraged to “include any additional matters useful to the convening authority or special trial counsel in determining disposition. For guidance concerning disposition of offenses, see Appendix 2.1 (Disposition Guidance).”
Looking at that Appendix, we find this:
Interests of Justice and Good Order and Discipline. The military justice system is a powerful tool that promotes justice and assists in maintaining good order and discipline while protecting the rights of Service members. In determining whether the interests of justice and good order and discipline are served by trial by court-martial or other disposition in a case, the factors listed below should be considered. The weight and priority given to each of these factors may vary depending on the facts and circumstances of the case.
And crucially, this:
Whether admissible evidence will probably be sufficient to obtain and sustain a finding of guilty in a trial by court-martial when viewed objectively by an unbiased factfinder
In other words, the defense should be focused on getting the PHO to express skepticism about the case’s ability to be proven at trial.
Which means your defense should stop thinking this hearing is about probable cause. It isn’t. It’s about reasonable doubt. OSTC doesn’t care about probable cause and getting charges referred to trial. OSTC cares about winning at trial.
Why You Never Waive the Hearing
Some inexperienced or incompetent defense attorneys fail to see the value of the Article 32 hearing. They think it’s a waste of time, since probable cause is easy to establish. They might tell the accused that paying a civilian attorney to do an Article 32 hearing is a waste of money.
We believe, based on our own experience, that the Article 32 hearing is often the most important part of a case, and often the final part of the case if done right. It’s an investment that can have immediate dividends. It’s the single best opportunity to reduce exposure before the government commits to trial.
If an attorney tells you to waive it without gaining something substantial and guaranteed in return, they’re either inexperienced or setting up a payday for the full trial fee later.
Free Case Review
If you are facing serious charges under the UCMJ and need experienced counsel who understands how to use the Article 32 hearing strategically, call us at 800-319-3134 for a confidential consultation. We have spent more than twenty years engaging with OSTC and military prosecutors at preliminary hearings, presenting exculpatory evidence early, and stopping weak cases before trial. The Article 32 is not a formality. It’s your best opportunity to end the prosecution before it reaches court-martial. Don’t waive it without understanding what you’re giving up.