Yes, the accused has an absolute and fundamental right to cross-examine government witnesses during an Article 32 preliminary hearing. This right is explicitly granted by Article 32 of the UCMJ and is one of the most significant procedural protections afforded to a service member at this stage. It transforms the hearing from a simple review of a paper file into a dynamic, adversarial proceeding.
Cross-examination at the Article 32 hearing serves several critical strategic purposes for the defense. First, it allows the defense to test the strength and credibility of the government’s evidence. By questioning a witness under oath, defense counsel can probe for inconsistencies, biases, or weaknesses in their testimony. This can reveal that the government’s case is not as strong as it may have appeared on paper.
Second, the hearing is a vital discovery tool. Through cross-examination, the defense can learn details about the government’s case that may not have been included in initial investigative reports. It provides an opportunity to uncover new information, identify other potential witnesses, and understand the full scope of the allegations. This is invaluable for preparing a defense strategy for trial.
Third, cross-examination allows the defense to “lock in” a witness’s testimony. The entire Article 32 hearing is transcribed. If a witness changes their story or testifies differently at a subsequent trial, the defense can use the official transcript from the Article 32 hearing to impeach their credibility before the court-martial panel. This ability to preserve testimony for potential impeachment is one of the most powerful advantages the hearing offers the defense.