The government’s trial counsel has significant ethical obligations during the Article 32 preliminary hearing process, extending beyond the role of a mere advocate. As a prosecutor in the military justice system, trial counsel acts as a minister of justice, with a duty to see that justice is done, not simply to obtain a recommendation for referral.
First, trial counsel has a duty of candor to the tribunal. They must not knowingly present false evidence or mislead the Preliminary Hearing Officer (PHO). They are obligated to present their case truthfully and accurately based on the information available to them. This includes not knowingly allowing their witnesses to provide false testimony without taking corrective measures.
Second, trial counsel has a crucial discovery obligation, famously established in Brady v. Maryland and codified in the Rules for Courts-Martial. They have an affirmative ethical and legal duty to disclose to the defense any evidence that is favorable to the accused. This includes exculpatory evidence (tending to show innocence) and impeachment evidence (tending to undermine the credibility of government witnesses). This duty applies before and during the Article 32 hearing.
Third, trial counsel must act with fairness and professionalism. This means refraining from harassing witnesses, making improper arguments based on personal opinion, or engaging in conduct intended to disrupt the proceedings. Their goal is to establish probable cause through credible evidence, not to win at all costs. A failure to adhere to these ethical obligations can result in professional discipline and can jeopardize the case itself.