UCMJ Article 32 Defense Attorney

An Article 32 preliminary hearing is a required step before the government can send serious charges to a general court-martial, and it’s the defense’s first real chance to stop a case from going to trial, which is why waiving it is almost always the wrong call. The preliminary hearing officer (PHO) has to rule on probable cause, an easy standard for the prosecution to meet, but the PHO’s evaluation also explores a more useful question: whether the evidence can get a conviction at trial. The accused can waive this hearing, but waiver forfeits the opportunity to get a favorable recommendation from the PHO and creates doubt in the prosecutor’s mind. Waiver also effectively guarantees the case will be referred to a court-martial. A referred case means risking a criminal conviction; when an accused is represented by civilian counsel, it also means paying for a trial. In sexual assault cases and the other covered offenses, the Office of Special Trial Counsel (OSTC) decides whether a case goes to trial. OSTC focuses on easy wins, so a hearing that creates doubt gives the prosecution a reason not to go forward.

What is an Article 32 Preliminary Hearing?

An Article 32 preliminary hearing is a proceeding the Uniform Code of Military Justice (UCMJ) requires before charges can be referred to a general court-martial, the most serious type of military trial. Charges are preferred when someone signs and swears to them under Article 30, and they’re referred when special trial counsel or a convening authority orders them to trial under Article 34. See our court-martial defense page for more on these processes.

Charges contain specific allegations known as specifications. Rule for Courts-Martial 307 defines a specification as “a plain, concise, and definite statement of the essential facts constituting the offense charged.” In plain terms, the charge names the UCMJ article the accused is said to have violated, and each specification under it describes one specific act: what happened, when, where, and to whom.

The accused can waive the hearing in writing, an option covered later on this page. Article 32 mandates that unless the accused waives the hearing, “the preliminary hearing shall be conducted by an impartial hearing officer.” The PHO will be a certified judge advocate, except in exceptional circumstances. In the most serious cases, a military judge might be appointed as the PHO.

Although the prosecution presents evidence, the accuser isn’t required to testify at an Article 32 hearing. Under Article 32 and Rule for Courts-Martial 405(i)(2)(A)(iv), “A victim may not be required to testify at the preliminary hearing.” Other witnesses can testify, but that rarely happens in the current era. Typically, the government presents its case through the investigative file (audio and video recordings, electronic files, written witness statements, etc.). The defense can cross-examine any adverse witness who does testify and can present evidence relevant to the four questions the hearing decides. The defense will present favorable evidence when it’s available, but usually focuses its efforts during the hearing on dismantling the government’s case.

At the hearing, the PHO advises the accused of the accused’s rights, makes rulings on evidence and witness requests, reviews the evidence the prosecution and defense present, and hears and evaluates any testimony. The PHO analyzes every charge and specification for legal sufficiency and can propose changes.

The PHO writes a report after every hearing. In almost every case, it goes to special trial counsel. Covered offenses are the serious crimes Article 1 of the UCMJ puts under the control of special trial counsel, including, among other offenses, Article 120 sexual assault, Article 128b domestic violence, Article 118 murder, and child pornography charged under Article 134. When the case has no covered offense, the report goes to the convening authority, the commander who otherwise orders a case to trial.

The report expresses the officer’s opinion on probable cause and on whether the evidence is sufficient to prove the case beyond a reasonable doubt if it goes to a court-martial. For each specification, the report states the officer’s reasoning and conclusions and summarizes the relevant evidence presented at the hearing. It also records the PHO’s prediction about whether the evidence will be available and admissible at trial.

An Article 32 is More Than a Probable Cause Hearing

An Article 32 is often called a probable cause hearing. Some military lawyers call it “just a probable cause hearing.” Those lawyers, and even many lawyers who take the hearing seriously, miss the most helpful part: the hearing officer also has to weigh whether the evidence can prove the case beyond a reasonable doubt at trial. For the defense, the better way to think of the Article 32 is that it’s a reasonable doubt hearing.

Article 32 provides the four principal questions the hearing is for: “The purpose of the preliminary hearing shall be limited to determining the following:”

• “Whether or not the specification alleges an offense under this chapter.”
• “Whether or not there is probable cause to believe that the accused committed the offense charged.”
• “Whether or not the convening authority has court-martial jurisdiction over the accused and over the offense.”
• “A recommendation as to the disposition that should be made of the case.”

Probable cause is a relatively low legal standard. Trial lawyers often describe probable cause as “more likely than not,” or 51 percent. They treat it as the same standard as preponderance of the evidence. But the Court of Appeals for the Armed Forces set the bar even lower than that for probable cause in United States v. Leedy: “Probable cause requires more than bare suspicion, but something less than a preponderance of the evidence.” Because the threshold is so low, the government will almost always meet that standard on at least one specification, so a defense that treats the Article 32 as a fight over probable cause gives up the more promising opportunities the hearing offers.

The fourth question, the disposition recommendation, is often the most valuable part of the hearing and where the defense can boost its odds of success. Under Rule for Courts-Martial 405, when making the disposition recommendation, the hearing officer must consider “the credibility and weight of the evidence” and “whether there is probably sufficient admissible evidence to obtain and sustain a conviction at trial.” Stripping out the legalese, that’s a question about proof beyond a reasonable doubt, the standard Article 51 sets for conviction at trial, under which the accused “must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt.”

While it’s true that the legal standard at the Article 32 hearing is probable cause, the defense’s goal is to create reasonable doubt in the mind of OSTC and the PHO.

Using an Article 32 Hearing to Avoid Trial

The accused can’t be convicted at an Article 32 hearing, so the defense can attack the government’s evidence and try out its strategies without risk. The defense team’s preparation for the hearing starts when it obtains the charges and evidence. The rules require the government to give the defense the evidence it plans to use at the 32 no later than five days after the hearing is directed.

Usually, the defense gets most, if not all, of the case’s discovery when charges are preferred. The evidence is typically sent electronically through a secure government server along with a copy of the charges and related documents. Some evidence might come later, either shortly before or after the hearing. The defense often seeks additional evidence after obtaining the case file.

When investigators are still looking into other possible offenses at the time of the 32, the investigation stays open past the preliminary hearing, with evidence from those efforts coming afterward, sometimes along with new charges. New charges require a new Article 32 hearing unless the evidence was examined at the first one. That’s what happened in the Fort Hood case discussed below, where the Army added charges after the first hearing was waived, and a new Article 32 was ordered.

In child pornography cases, the government can’t send the evidence to the defense because the images are contraband, so the defense has to review that evidence in person at a secure law enforcement office, such as an Air Force Office of Special Investigations (OSI) detachment.

At the hearing, the defense can do several things, in addition to cross-examining prosecution witnesses:

• Address inconsistencies between witness statements.
• Present contradictory or exculpatory evidence.
• Point out legal defects in the charges.
• Propose a disposition other than a general court-martial.

That’s not an exhaustive list. The defense can do much more during the hearing, both inside and outside the courtroom. After the hearing closes, the defense can still submit matters to the PHO within certain timelines, and the PHO’s report has to address them.

Waiving The Article 32 Hearing Makes a Court-Martial More Likely

The accused can waive the preliminary hearing in writing. If that happens in a covered-offense case, the special trial counsel then decides whether a hearing is still required. But waiving the hearing is almost always a mistake: it surrenders the defense’s best chance to derail the case before trial and effectively guarantees the case will be referred. The client will then face some steep costs: first, the risk of a conviction, confinement, and, for some offenses, sex offender registration; second, the higher expense of legal representation at the court-martial.

Costs of Waiving the Article 32 Preliminary Hearing

Some defense counsel offer reasons to justify a waiver, but they’re kidding themselves:

• “We don’t want to preview our defense.” This is a case of being too clever by half. In any UCMJ case, the defense has a limited number of available moves, and most OSTC prosecutors have experience on the defense side. Prosecutors who have worked defense cases already know what the defense is likely to do, and they prepare for it whether or not the hearing takes place. What usually separates a good defense from a bad defense is how well it’s carried out, not whether it caught the prosecution by surprise. If a defense can succeed, the Article 32 hearing is the place to use it to get the case deferred or dismissed before the risk of conviction applies.
• “We don’t want the government to perfect its case.” The evidence is what it is. If the evidence is weak, OSTC can’t fix it just because the hearing officer pointed it out. The prosecution keeps working on and strengthening its case for trial either way. A weak case should be attacked at the hearing, when there’s no risk of losing, and the defense should create reasonable doubt as early as possible.
• “The charges aren’t in proper form, and we don’t want the hearing officer to alert the prosecution.” A waiver just alerts the prosecution to take a closer look, wondering if they missed something. Rule for Courts-Martial 603 lets the government change charges before referral and correct clerical errors. At worst, the government can withdraw the charges and prefer them again to cure a major defect. The accused gives up the hearing and the best chance to end or defer the case for a move that seldom, if ever, works.

Waiving makes sense only when the benefit to the accused is guaranteed in writing and worth more than what the accused gives up, such as a plea agreement, binding on the government, that drops a significant charge or caps the sentence.

In March 2026, after a former Army OB-GYN at Fort Hood, charged with making secret recordings of patients during medical exams, waived his Article 32 hearing, Keith Scherer explained to KXXV News why lawyers advise their clients to waive Article 32 hearings and why that’s bad advice.

In May 2026, after the Army filed additional charges in the same case and scheduled a new preliminary hearing, Mr. Scherer summarized for KXXV News why those charges needed a new Article 32 hearing. The military prefers to bring all known allegations to a single court-martial, so the new charges had to go through their own preliminary hearing before they could be added to the original set. He also explained what to expect at an open hearing, that the unit and the media can be present, and that the alleged victims have a right to participate or observe remotely or in person.

How The Defense Can Work With OSTC to Avoid a Court-Martial

When a special trial counsel declines to bring charges for a covered offense, or declines to refer charges someone else brought, the case is deferred, which means authority over the case is transferred to the commander. The commander then has disposition authority over the offense but can’t refer that covered offense to a special or general court-martial. The commander can, however, charge the same conduct under an article that isn’t a covered offense. In United States v. Kruse, decided in 2026, the Court of Appeals for the Armed Forces upheld a referral of Article 128 assault charges after OSTC deferred an Article 128b domestic violence allegation based on the same conduct.

Special trial counsel take covered-offense cases to trial when they’re confident of a conviction. The substantial majority of covered-offense allegations are deferred or never charged. Deferral can happen before or after the Article 32 hearing. In many cases, OSTC sends a case to an Article 32 hearing even when it wants to defer it, both for appearances and to get a hearing officer’s recommendation it can lean on for support when it defers. That gives the defense and special trial counsel a shared interest at the Article 32 stage: neither side gains from a trial the government can’t win.

Most defense counsel never contact OSTC at all. They wait for charges. But the defense’s collaboration with special trial counsel should start with the first contact and continue for the life of the case. Before charges are preferred, defense counsel can present favorable evidence to OSTC and point out problems with the case. They can do that after preferral, too, but the goal is to avoid charges in the first place.

If charges are preferred, the preliminary hearing is a great chance to persuade OSTC to defer or decline the case. By then, OSTC is in control of the case. The investigation is usually finished, and special trial counsel are looking ahead to how the case will end.

Additionally, a hearing officer’s report documenting problems with the government’s case gives special trial counsel a written, formal reason to defer the case to the commander or dismiss it.

Gagne, Scherer & Associates: Article 32 Defense Attorneys

Keith Scherer and Greg Gagne attack the prosecution’s case at the Article 32 stage to get a favorable recommendation from the hearing officer, create reasonable doubt at no risk to their clients, and give OSTC reasons to defer or dismiss the case. That’s the goal at the Article 32 stage: end the case before trial and save clients the much higher cost and risk of going to trial.

Sources

1. U.S. Congress. (2021). 10 U.S. Code § 832 – Art. 32. Preliminary hearing required before referral to general court-martial. Legal Information Institute, Cornell Law School. Accessed November 2, 2026.
2. U.S. Congress. (2021). 10 U.S. Code § 834 – Art. 34. Advice to convening authority before referral for trial. Legal Information Institute, Cornell Law School. Accessed November 2, 2026.
3. Joint Service Committee on Military Justice. (2024). Manual for Courts-Martial, United States. Accessed November 2, 2026.
4. U.S. Congress. (2021). 10 U.S. Code § 801 – Article 1. Definitions. Legal Information Institute, Cornell Law School. Accessed November 2, 2026.
5. U.S. Congress. (2016). 10 U.S. Code § 851 – Art. 51. Voting and rulings. Legal Information Institute, Cornell Law School. Accessed November 2, 2026.
6. U.S. Congress. (2016). 10 U.S. Code § 830 – Art. 30. Charges and specifications. Legal Information Institute, Cornell Law School. Accessed November 2, 2026.
7. Court of Appeals for the Armed Forces. (2007). United States v. Leedy, 65 M.J. 208. Accessed November 2, 2026.
8. Court of Appeals for the Armed Forces. (2026). United States v. Kruse, No. 26-0156. Accessed November 2, 2026.