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In an Article 32 hearing, an appointed Preliminary Hearing Officer (PHO) considers the case (witnesses and evidence) and makes non-binding recommendations about his/her view of whether probable cause exists, how the case was, or should, be charged, and how the case should be resolved (a court-martial or some other course of action, to include dropping the case). These non-binding recommendations are then considered in the referral decision. An Article 32 hearing is not required for a Special Court-Martial.
An Article 32 Preliminary Hearing Officer can make many different recommendations. For instance, the Investigating Officer can recommend that the case proceed to a General Court-Martial, that charges be amended or added, that the case proceed to Special Court-Martial, that alternative dispositions (such as administrative discharge, resignation, or nonjudicial punishment) be considered, or that the case be dropped altogether; however, again, the recommendations of the Preliminary Hearing Officer are not binding.
In recent years, Article 32 hearings have been changed in significant ways. Often, this leads prosecutors to suggest that the hearing is now nothing more than a meaningless formality before a military case is referred to trial by court-martial. We maintain that Article 32 hearings still can be very important hearings, in which evidentiary issues and legal issues that impact case disposition recommendations can be exposed and leveraged to the advantage of the accused.
As such, an Article 32 hearing can still be an important strategic opportunity for the defense. Given the jeopardy faced by military members in court-martial trials, experienced and aggressive defense representation is crucial at an Article 32 hearing.
Defending military members in the court-martial process, including Article 32 hearings, is what our civilian court-martial defense lawyers do. The only type of law they handle is military law. Our civilian criminal defense attorneys and former military JAG lawyers who exclusively defend military members stationed around the world who are facing military trials, discipline and investigations.