Yes, the defense not only can but has a right to request and receive access to the government’s investigative files before the Article 32 preliminary hearing begins. This right to pretrial discovery is fundamental to preparing for the hearing and is governed by the Rules for Courts-Martial (R.C.M.), particularly R.C.M. 701, as well as constitutional due process requirements established in cases like Brady v. Maryland.
The government has an affirmative duty to provide the defense with a significant amount of information. This includes all evidence the government intends to present at the hearing, such as witness statements, law enforcement reports, photographs, and forensic analysis. Crucially, the prosecution must also turn over any known exculpatory evidence, which is evidence that tends to show the accused is innocent, as well as any impeachment evidence that could be used to question the credibility of government witnesses.
Defense counsel will typically submit a formal discovery request to the government’s attorney (trial counsel) as soon as they are detailed to the case. This request triggers the government’s obligation to turn over the relevant files. If the government fails to produce required information, the defense can raise the issue with the Preliminary Hearing Officer (PHO), who has the authority to order the disclosure.
Access to these files is essential for effective preparation. It allows the defense to understand the government’s theory of the case, identify weaknesses, prepare for cross-examination, and decide which defense witnesses or evidence to present. Without this pretrial discovery, the defense would be unable to meaningfully exercise the rights afforded to them at the hearing, rendering the proceeding a hollow exercise.