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Can the defense request access to investigative files before the hearing?

Published November 6, 2026

Yes, and the rule gives specific access. R.C.M. 404A says that after direction of a preliminary hearing, the government provides the defense with “statements, within the control of military authorities, of witnesses that counsel for the Government intends to call at the preliminary hearing,” along with the charge sheet, the order directing the hearing, and evidence it plans to present, on its terms. The rule doesn’t give the entire investigative file at that point. The Discussion says the hearing “is not intended to serve as a means of discovery.” Wider discovery comes after referral, under R.C.M. 701.

What can be asked for

  • Evidence that the government will present.
  • Statements of its witnesses.
  • Evidence that the defense requests for the hearing, if relevant.
  • A subpoena for civilian evidence: R.C.M. 405 and 703(g)(3).

Protective orders

R.C.M. 404A(d) allows the convening authority to act: “If the Government agrees to disclose to the accused information to which the protections afforded by Section V of Part III may apply, the convening authority, or other person designated by regulation of the Secretary concerned, may enter an appropriate protective order.” Privileged matter has its own process.

Why ask early

A specific request can help later: United States v. Claxton, 76 M.J. 356 (C.A.A.F. 2017), explains that a nondisclosure “in response to a specific request” gets a favorable standard on appeal. Favorable evidence should be disclosed regardless: R.C.M. 701(a)(6) applies after service of charges, and the government’s own duty of disclosure of favorable matter is broad under Brady v. Maryland, 373 U.S. 83 (1963).

If the government refuses

Ask the hearing officer to note it. Objections go in the report: the hearing officer records “any objections if required.” Ask the convening authority for relief. After referral, move under R.C.M. 906(b)(3) and (b)(7). A failure to substantially comply “which failure prejudices the accused, may result in delay in disposition of the case or disapproval of the proceedings.”

Other routes

A Privacy Act or Freedom of Information Act request may get records in a closed case, within the exemptions of those laws. Those are slow, and they aren’t a substitute for discovery.

Put the request in writing, soon after notice. List categories: agent notes, recordings, lab requests, and text extractions. Set a date. Keep a log. An accused shouldn’t contact agents or witnesses directly.

General information about military law, not legal advice, and it creates no attorney-client relationship. Rules change and outcomes turn on the facts, so a specific situation belongs with a military defense counsel, a legal assistance office, or a civilian attorney.

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