On December 8, 2023, the Military Justice Review Panel submitted to the General Counsel of the Department of Defense its assessment of Article 32, UCMJ, concerning preliminary hearings. The Panel's memorandum can be found here. There were three recommendations. In a nutshell:
1. Amend Article 32 to state the purposes of preliminary hearings, including, most notably, affording an opportunity for meaningful discovery. This represents a reversal of an earlier revision that had generated a great deal of consternation in the defense bar.
2. Require that, when practicable, the preliminary hearing officer be a judge advocate with training in the conduct of preliminary hearings.
3. Amend Article 32 and R.C.M. 405 to provide that a preliminary hearing officer's determination that a charged offense lacks probable cause precludes referral to a general court-martial, (a) subject to appeal as of right to a military judge in accordance with Article 30a, UCMJ, and (b) without prejudice to the government's power to re-prefer the charge.
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