Yes, the official transcript of an Article 32 preliminary hearing, prepared by a court reporter, can and should be challenged if it contains errors. The transcript is a critical document that serves as the verbatim record of the proceedings. Its accuracy is paramount, as it is used to preserve testimony for impeachment, to draft pretrial motions, and to inform the convening authority.
If defense counsel or trial counsel discovers a substantive error in the transcript, such as a misquoted piece of testimony, an incorrect name, or a garbled section, they should take immediate steps to have it corrected. The typical process is to first try to reach an agreement with the opposing counsel on the necessary correction. If both sides agree, they can submit a joint “stipulation of correction” to the court reporter and the legal office.
If the parties cannot agree on the correction, the party seeking the change can file a formal motion to correct the record. This motion would be submitted to the legal authority overseeing the case, which could be the Preliminary Hearing Officer (PHO) if still appointed, or more likely the Staff Judge Advocate (SJA) or the military judge if the case has been referred. The motion would detail the alleged error and provide evidence, such as counsel’s notes or the audio recording of the hearing, to support the proposed correction.
The authority reviewing the motion will then make a decision on whether to order the transcript to be corrected. Ensuring the accuracy of the record is vital, as a seemingly minor error could have a significant impact on the meaning of a witness’s testimony. Diligent review and prompt correction of the transcript are essential parts of post-hearing procedure.