The Article 32 preliminary hearing produces a written record that follows the case forward, and the accuracy of that record can matter a great deal at trial. When a witness says something at the hearing that contradicts later testimony, the Article 32 record is how the defense holds the witness to the earlier account. So service members and their counsel reasonably ask whether they can challenge errors in the Article 32 transcript, and whether the court reporter who prepared it can be held to account. The honest answer requires understanding what the Article 32 record actually is, why it is rarely a perfect transcript, and what tools exist to correct or expose errors in it.
The Article 32 record is usually a summary, not a verbatim transcript
A common misunderstanding is that the Article 32 hearing generates a full word-for-word transcript like the record of a court-martial. It usually does not. Under Rule for Courts-Martial 405, the report of the preliminary hearing need only include the substance of the testimony taken, rather than a verbatim transcription. In practice, the testimony is summarized, although it may be recorded verbatim in some cases.
This distinction shapes the entire question of challenging errors. A summary, by its nature, condenses and paraphrases. Whether a given summary is accurate is a different inquiry than whether a verbatim transcript faithfully captured every word. Likewise, the rules do not require a court reporter at every Article 32 hearing. Rule for Courts-Martial 405 permits a reporter to be detailed, but does not mandate one. So in many hearings there is no professional court reporter at all, and the record is the preliminary hearing officer’s summary rather than a transcript a reporter produced.
What it means to challenge errors in the record
Because the record is typically a summary, challenging errors is less about attacking a court reporter’s transcription and more about ensuring the summary accurately reflects what was said. There are several practical avenues for doing this.
The most direct is to verify accuracy at the source. Defense counsel can request that each witness review the summarized version of his or her Article 32 testimony and sign it to confirm that the witness believes the summary is accurate. Service procedural guidance recognizes this practice. A signed acknowledgment serves two purposes. It corrects errors before they harden into the record, and it locks the witness into the summarized account, which becomes valuable for impeachment if the witness later tries to change the story at trial.
A second avenue is contemporaneous correction. If counsel believes the preliminary hearing officer’s summary misstates testimony, counsel can object on the record and ask that the summary be corrected to reflect what the witness actually said. Raising the issue while memories are fresh and while the preliminary hearing officer is still available is far more effective than trying to reconstruct a dispute months later.
A third avenue concerns recordings. Whether the defense may make its own recording of the hearing is not guaranteed, and commands have at times imposed conditions on defense recording, such as requiring the defense to produce a professional verbatim transcript at its own expense and to accept resulting delay as excludable. The defense can object to unreasonable conditions and seek reconsideration from the appointing authority. Where a recording does exist, it can be used to demonstrate that the written summary departed from the actual testimony.
Challenging the court reporter specifically
When a court reporter is detailed and produces a verbatim transcript, the question shifts to the reliability of that transcription. A court reporter is a functionary detailed to the hearing, not a witness whose credibility the accused gets to test in the way one tests an adverse witness. So the usual mechanism is not to put the reporter on trial but to expose and correct inaccuracies in the work product.
That correction can be pursued by comparing the transcript against any recording, by having witnesses confirm or dispute the rendering of their testimony, by raising discrepancies with the preliminary hearing officer, and by documenting the errors so they are preserved for later use. If a transcription error is significant and prejudicial, counsel can litigate the point, but the focus remains on the accuracy of the record and any resulting prejudice, rather than on disciplining the reporter as such. A demonstrated material error can undercut the government’s reliance on the record and can support arguments about the fairness of the proceeding.
Why the accuracy of the record matters at trial
The reason all of this effort is worthwhile is that the Article 32 record is a tool of cross-examination. If a government witness testifies one way at the hearing and a different way at the court-martial, the defense uses the earlier account to confront the witness with the inconsistency. That tactic only works if the earlier account is reliably captured. An inaccurate summary can cut both ways: it can wrongly suggest an inconsistency that never occurred, or it can fail to preserve a genuine inconsistency the defense needs.
Securing a witness’s signature on the summary, correcting misstatements as they happen, and preserving any recording all serve the same goal. They make the Article 32 record a dependable benchmark against which trial testimony can be measured. Counsel who treats the Article 32 hearing as a throwaway proceeding loses this leverage, while counsel who polices the record carefully builds a foundation for effective impeachment.
Practical steps for the defense
Several concrete steps follow. Counsel should attend the hearing prepared to take detailed notes on testimony. Counsel should request that witnesses review and sign the summary of their testimony for accuracy. Counsel should object on the record to any summary that misstates what a witness said and ask for correction. Counsel should clarify in advance whether a recording will be made and on what terms, and object to unreasonable conditions. And counsel should preserve any discrepancies in writing so they remain available for use at trial. Each step strengthens the ability to challenge errors and to rely on the record when it counts.
Conclusion
Yes, errors in the Article 32 record can be challenged, but the challenge is shaped by the nature of that record. Because Rule for Courts-Martial 405 requires only the substance of the testimony and does not even require a court reporter, the most effective response to inaccuracy is to verify the summary at the source, to correct misstatements contemporaneously, and to preserve recordings and discrepancies for later use. Where a reporter does produce a verbatim transcript, the focus is on exposing and correcting material errors rather than on disciplining the reporter. In every case, a carefully policed Article 32 record protects the accused’s ability to hold witnesses to their earlier accounts at trial.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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