After preferral of charges, the next step in the court-martial process is the preliminary hearing. UCMJ Article 32 states: “No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing, unless such hearing is waived by the accused.” The standard of proof at an Article 32 preliminary hearing is very low: probable cause to believe an offense has been committed and the accused committed the offense.
The command appoints a Preliminary Hearing Officer (PHO) to conduct the hearing. In most cases, the PHO is a JAG attorney. The command is represented by the Trial Counsel, also a JAG lawyer. The accused service member has the right to be represented by an attorney during the preliminary hearing.
The Military Rules of Evidence do not apply at a preliminary hearing. This means the prosecution may meet their very low burden of proof by submitting written statements, reports, and other documents that would not be admissible at trial because they contain hearsay. The prosecution may choose to submit in-person testimony, but this is no longer required.
In 2014, Congress revised Article 32 of the UCMJ removing important procedural safeguards: what was once a “thorough investigation” is now merely a hearing. In most cases the hearing lasts only a few hours. Congress removed an accused service member’s right to discovery of the government’s alleged evidence. Also, alleged victims may not be compelled to testify at a preliminary hearing.
At the conclusion of the hearing, the PHO completes a report on whether the prosecution has met the low probable cause standard of proof and may also make a recommendation whether the charges should go forward to a court-martial. This is only a recommendation which the chain of command is free to ignore.
IS THE PRELIMINARY HEARING IMPORTANT?
Given the drastic reduction in protections afforded by UCMJ Article 32, is the preliminary hearing worth the time? In some cases no, but in many cases the preliminary hearing may still afford some opportunity to discover what evidence the prosecutors believe provides a reasonable belief that an accused service member committed a military crime. The hearing may also afford an opportunity to develop evidence for use during trial.
Before waiving your preliminary hearing, speak with an experienced military lawyer.