The Manual for Courts-Martial (MCM) plays a foundational and controlling role in every aspect of an Article 32 preliminary hearing. The MCM is an executive order issued by the President of the United States that provides the detailed rules and procedures for implementing the Uniform Code of Military Justice (UCMJ). For Article 32 hearings, its role is comprehensive, governing everything from initiation to conclusion.
Specifically, the Rules for Courts-Martial (R.C.M.) within the MCM, particularly R.C.M. 405, provide the procedural roadmap for the hearing. R.C.M. 405 details the rights of the accused, the qualifications and duties of the Preliminary Hearing Officer (PHO), the rules for producing witnesses and evidence, and the requirements for the PHO’s final report. It is the go-to reference for both counsel and the PHO on how the hearing must be conducted.
The MCM also contains the Military Rules of Evidence (MRE). While the MRE are applied in a relaxed manner at the Article 32 stage, they still provide the framework for evidentiary matters. For example, the rules on privilege, such as the attorney-client privilege or the privilege for victim-advocate communications, apply with full force during the hearing. Defense counsel will cite the MRE when making objections to improper evidence.
In essence, the MCM translates the broad statutory requirements of Article 32 of the UCMJ into a workable, step-by-step process. It ensures uniformity and fairness in how these hearings are conducted across all branches of the armed forces. Any deviation from the procedures laid out in the MCM can be grounds for a procedural objection by the defense and may become an issue for later appeal.