Yes, a defense team can absolutely use the Article 32 preliminary hearing to expose and later challenge the legality of command decisions that may have improperly influenced the case. This is a critical, though advanced, use of the hearing as a discovery tool to uncover potential instances of Unlawful Command Influence (UCI).
UCI occurs when a commander uses their authority to interfere with the military justice process. During the Article 32 hearing, defense counsel can question witnesses from the accused’s chain of command or investigators about their interactions with senior leaders. Questions might explore whether the commander ordered subordinates to cooperate with investigators, expressed an opinion on the accused’s guilt, or threatened adverse consequences for anyone who supported the accused.
If testimony at the hearing reveals evidence of potential UCI, the defense has created a sworn record of the improper command action. While the PHO does not have the authority to dismiss charges based on UCI, they can and should note the issue in their report to the convening authority.
More importantly, the defense can use the transcript from the hearing as the factual basis for a formal motion to dismiss for UCI, which would be litigated before a military judge after the case is referred to trial. The hearing testimony provides the essential evidence needed to prove that the commander’s actions were unlawful and prejudiced the accused’s right to a fair process. Exposing UCI is one of the most powerful ways an Article 32 hearing can protect an accused.