If the government fails to disclose required evidence to the defense prior to the Article 32 preliminary hearing, it constitutes a discovery violation that the defense must address immediately. The defense has a right to receive relevant evidence from the government, especially any evidence that is exculpatory or could be used for impeachment.
When a violation is discovered, defense counsel should bring it to the attention of the Preliminary Hearing Officer (PHO) as soon as possible. The defense would object and explain what evidence was withheld and why it is relevant. The defense would then request a remedy from the PHO to cure the prejudice caused by the late disclosure.
The PHO has several options to remedy the violation. The most common remedy is to order a continuance or a recess of the hearing. This gives the defense time to review the newly disclosed evidence, assess its impact, and prepare a strategy for cross-examination or rebuttal. This is often sufficient to cure the harm if the violation was unintentional.
If the violation is more egregious or the evidence is particularly complex, the PHO could take stronger measures. For example, the PHO could prohibit the government from introducing the undisclosed evidence at the hearing. While the PHO cannot dismiss charges, they can certainly make a note of the government’s discovery violation in their final report to the convening authority. This could reflect poorly on the government’s case and potentially influence the commander’s disposition decision. The key is for the defense to object and demand a remedy on the record.