Discovery of new evidence after Article 32 hearings completes but before referral creates opportunities for supplemental submissions potentially influencing convening authority decisions. Defense counsel should immediately notify prosecutors and request either hearing reopening or permission to submit additional materials to the PHO and convening authority. While no absolute right exists to supplement completed hearings, practical interests in accurate charging decisions often support considering significant new evidence.
Types of new evidence warranting consideration include witness recantations undermining government’s case, previously unknown alibi witnesses or documentation, expert opinions contradicting government theories, or exculpatory physical evidence from delayed testing. The key factors are materiality to probable cause determinations and explanations for why evidence wasn’t available earlier. Mere cumulative evidence or improved defense theories rarely justify post-hearing supplementation.
Procedural options include formal requests to reconvene Article 32 hearings for new evidence presentation, written submissions with supporting documentation to PHO/SJA, motions to convening authorities delaying referral pending consideration, or incorporating new evidence into pretrial agreement negotiations. Even if formal reconsideration is denied, creating records of new evidence supports later trial motions or appellate arguments about rushed proceedings.
Strategic evaluation requires assessing whether new evidence truly changes case dynamics or merely offers marginal improvements, if delay benefits overall defense or maintains problematic uncertainty, and whether revealing evidence now helps disposition or better serves trial surprise. The informal nature of military justice often allows practical accommodations for significant developments, though defense must advocate aggressively for consideration rather than assuming automatic review.