Yes, the government can introduce hearsay evidence at an Article 32 preliminary hearing. The formal, strict rules of evidence that apply at a court-martial are relaxed during this pretrial investigative stage. The purpose of the hearing is to determine probable cause, not guilt, and therefore the Preliminary Hearing Officer (PHO) is permitted to consider a wider range of information to make that determination.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. While it is generally inadmissible at trial due to concerns about its reliability, it is routinely admitted in Article 32 hearings. This means the government can present evidence through sworn statements from witnesses who are not present, or through the testimony of an investigator who recounts what other people told them during the investigation.
The rationale for allowing hearsay is primarily one of efficiency. It would be impractical and burdensome to require every single witness to appear in person for a preliminary hearing. Allowing the use of reliable hearsay, such as sworn statements or law enforcement reports, enables the PHO to get a comprehensive overview of the case without an unnecessarily prolonged or complicated proceeding.
However, the defense is not without recourse. While the PHO can consider hearsay, the defense can still object to it and argue that it is unreliable or that its value is minimal. The defense can also demand that the government produce the live witness from whom the hearsay statement originated, especially if that witness is critical to the case. The PHO has the discretion to decide whether a witness must be called, balancing the government’s convenience against the accused’s right to confrontation.