When charges are referred despite legally insufficient evidence at the Article 32 hearing, several remedies exist but dismissal isn’t automatic. The Article 32 officer’s finding of insufficient evidence is advisory only; convening authorities retain discretion to refer charges if they disagree with the recommendation. However, referral based on clearly insufficient evidence may support various defense motions and impact trial proceedings. The defense cannot directly appeal the referral decision but can challenge it through other mechanisms.
At trial, the defense can file motions to dismiss under RCM 907 arguing the charges fail to state offenses or lack factual sufficiency. The military judge reviews whether the specification alleges each element and whether reasonable grounds exist to believe the accused committed the offense. This standard differs from trial sufficiency. Additionally, the defense may argue unlawful command influence if the referral ignored legal advice or resulted from improper command pressure.
Strategically, weak Article 32 evidence strengthens motions for discovery, expert assistance, or other resources needed to defend against unsupported charges. It may support requests for deposition of government witnesses or pretrial motions challenging evidence admissibility. During trial, defense counsel can reference the Article 32 officer’s findings to undermine government credibility. Post-trial, if conviction occurs, the record of insufficient preliminary evidence may support appellate arguments about factual or legal sufficiency. The key is preserving objections and documenting how insufficient evidence prejudiced the defense.