Yes, the defense can and absolutely should raise any perceived procedural violations during the Article 32 process. The preliminary hearing is governed by a set of rules outlined in the UCMJ and the Manual for Courts-Martial (MCM), and adherence to these rules is necessary to ensure a fair and impartial investigation. Raising violations at this early stage is critical for protecting the accused’s rights and preserving issues for potential appeal.
Common procedural issues that the defense might raise include challenges to the impartiality of the Preliminary Hearing Officer (PHO), objections to the government’s failure to produce a relevant witness, or violations of discovery rules. For example, if the defense learns that the PHO has had prior involvement in the case, they can move to have the PHO recused. If the government fails to provide the defense with requested evidence, counsel can object and ask the PHO to compel its production.
These objections are made directly to the PHO during the hearing. The PHO has the authority to rule on these procedural matters. For instance, the PHO can order the government to produce a witness or grant the defense a continuance if new evidence is suddenly disclosed. Making these objections on the record is crucial. It creates a clear transcript showing that the defense did not waive its rights and attempted to correct the error at the earliest opportunity.
If the PHO overrules a valid defense objection, the issue is preserved for later review. The defense can raise the procedural defect with the convening authority after the PHO’s report is submitted. If the case proceeds to trial and results in a conviction, the procedural error at the Article 32 stage can become a basis for an appeal, where the defense can argue that the defect resulted in material prejudice to a substantial right of the accused.