Yes, the defense has the absolute right to present witnesses during an Article 32 preliminary hearing. This right is a cornerstone of the adversarial nature of the hearing and is explicitly provided for in Article 32 of the UCMJ and the associated rules in the Manual for Courts-Martial. It allows the accused to present evidence that may negate probable cause or provide mitigating information for the Preliminary Hearing Officer (PHO) to consider.
The process for calling defense witnesses is straightforward. The defense counsel will notify the government and the PHO of the witnesses they intend to call. The government is generally responsible for arranging the presence of military witnesses. For civilian witnesses, the defense may request the PHO to issue a subpoena to compel their attendance if they are unwilling to appear voluntarily. The PHO has the authority to approve these requests if the witness’s testimony is deemed relevant and necessary.
The types of witnesses the defense might call are varied. They could include alibi witnesses who can place the accused elsewhere at the time of the alleged offense. The defense might also call character witnesses to speak to the accused’s reputation for truthfulness or law-abidingness, which can be relevant to the PHO’s overall assessment. In some cases, the defense may even call its own expert witness to challenge the government’s forensic or scientific evidence.
The ability to call witnesses allows the defense to do more than just challenge the government’s case; it allows them to build their own affirmative case. By presenting favorable testimony, the defense can create a more complete and balanced record for the PHO. This can influence the PHO’s determination of probable cause and shape the recommendation provided to the convening authority, potentially leading to a more favorable outcome for the accused before the case ever reaches trial.