Yes, a defense team can file a written rebuttal to the Preliminary Hearing Officer’s (PHO) report and findings. After the PHO completes the report and submits it to the convening authority, a copy is provided to the defense. The defense then has a specific period, typically five days unless extended, to submit matters in response. This rebuttal is a crucial opportunity for advocacy.
The written rebuttal is submitted directly to the convening authority, with a copy to the Staff Judge Advocate (SJA). In this document, the defense can challenge the PHO’s analysis, highlight evidence the PHO may have overlooked or misinterpreted, and argue against the PHO’s legal conclusions. If the PHO recommended referral of the charges, the defense can use the rebuttal to argue directly to the commander why that recommendation is flawed and why the charges should be dismissed or handled differently.
This rebuttal serves as the defense’s final argument to the convening authority before the referral decision is made. It allows the defense to frame the evidence in the light most favorable to the accused and to make policy arguments that may not have been the focus of the PHO’s legal analysis. For example, the defense can discuss the accused’s outstanding service record or the potential negative impact of a trial on unit morale.
The convening authority is required to consider the defense’s rebuttal along with the PHO’s report and the SJA’s advice. A well-written, persuasive rebuttal can be highly influential and can sometimes convince a commander to choose a more lenient course of action than the one recommended by the PHO. It is a vital step that should not be overlooked by any defense team.