When the defense and prosecution disagree on the scope of an Article 32 preliminary hearing, the authority to resolve the dispute rests with the Preliminary Hearing Officer (PHO). The scope of the hearing is meant to be broad, covering a “thorough and impartial” investigation into the charges, but disagreements can arise over specific issues, such as the relevance of certain evidence or the necessity of calling a particular witness.
For example, the defense may wish to call a series of witnesses to explore a potential motive for the accuser to fabricate the allegations. The government might object, arguing that this line of inquiry is an irrelevant “fishing expedition” and outside the proper scope of a probable cause hearing. Both sides would then present their arguments to the PHO.
The PHO will listen to the arguments and make a ruling based on the principle of relevance. The PHO must determine whether the contested evidence or testimony is reasonably likely to shed light on the existence of probable cause or to provide information that would assist the convening authority in making a disposition decision. The PHO has considerable discretion in making these rulings.
If one party strongly disagrees with the PHO’s ruling on scope, they can make an objection on the record to preserve the issue. While the PHO’s decision controls the conduct of the hearing itself, a significant dispute over scope could be raised again by the defense in their written rebuttal to the convening authority. The defense could argue that the PHO improperly limited the scope of the hearing, resulting in an incomplete investigation and a flawed recommendation.