Yes, an Article 32 preliminary hearing can be reopened if significant new evidence emerges after the hearing has concluded but before the convening authority has made a formal referral decision. The purpose of the hearing is to conduct a thorough investigation, and if critical new information becomes available, it is in the interest of justice to consider it.
The decision to reopen the hearing rests with the convening authority. Either the prosecution or the defense could make a request to the convening authority to reopen the proceedings to present the new evidence. For example, if a key alibi witness who was previously unavailable is located, the defense would petition to reopen the hearing to present their testimony. Similarly, if the government uncovers new incriminating evidence, they might request to reopen to ensure it is part of the record.
The convening authority, likely acting on the advice of their Staff Judge Advocate (SJA), would weigh the importance of the new evidence against the need for a timely disposition of the case. If the evidence is deemed significant enough that it could reasonably affect the Preliminary Hearing Officer’s (PHO) findings or recommendation, the convening authority can direct the PHO to reopen the hearing for the limited purpose of hearing that new evidence.
After the reopened session concludes, the PHO would typically submit an addendum or a revised report that incorporates the new evidence and analysis. This ensures that the convening authority’s final referral decision is based on the most complete and up-to-date information possible, upholding the hearing’s purpose as a thorough pretrial investigation.