While the Article 32 hearing is a powerful tool, inexperienced or unprepared defense counsel can make several common mistakes that limit its effectiveness. One of the most significant errors is conducting an overly aggressive or trial-style cross-examination. The goal of the hearing is primarily discovery, not to “win” the case at that moment. A lawyer who reveals their entire trial strategy or unnecessarily antagonizes a witness may lose the element of surprise and gain little valuable information.
Another common mistake is failing to adequately prepare. This includes not thoroughly reviewing the investigative file, not researching the legal elements of the offenses, and not preparing a detailed plan for cross-examining each witness. An unprepared counsel may miss opportunities to probe for weaknesses, fail to ask critical follow-up questions, and neglect to establish a record on key issues. The hearing is not the time for improvisation.
A third error is waiving the presence of key government witnesses. The government may prefer to rely on sworn statements or hearsay from an investigator. A defense counsel who agrees to this without a fight gives up the crucial opportunity to cross-examine the live witness, test their credibility, and lock them into testimony. Demanding the presence of essential witnesses is a fundamental right and a key function of the hearing.
Finally, some counsel may fail to use the hearing to build a case for a favorable disposition. They might focus solely on attacking the government’s case without presenting their own mitigating evidence or character witnesses. A well-rounded presentation can influence the Preliminary Hearing Officer’s recommendation on the appropriate forum or even lead to pretrial diversion, an opportunity missed by a purely oppositional approach.