When witnesses refuse to appear at Article 32 hearings, the preliminary hearing officer (PHO) has limited enforcement authority compared to court-martial judges. Military witnesses can be ordered to appear by competent military authority, with failure constituting dereliction of duty or violation of orders. However, PHOs cannot directly compel attendance through contempt powers, requiring coordination with commanders for military witness compliance.
Civilian witnesses present greater challenges as subpoena power for Article 32 hearings remains unsettled. While RCM 405 authorizes witness production, enforcement mechanisms lack clarity for civilians. Practical approaches include requesting voluntary cooperation, offering travel reimbursement, or conducting telephonic testimony. The government bears responsibility for producing reasonably available witnesses, though “reasonable availability” receives narrow interpretation.
PHO responses to witness unavailability include proceeding without testimony, considering written statements or prior testimony, or recommending delay if witnesses are essential. Defense counsel must demonstrate materiality and necessity for absent witnesses, showing how testimony would affect recommendations. Mere preference for live testimony rarely suffices without specific showing of unique value.
The impact varies based on witness importance and party requesting attendance. Government’s failure to produce essential witnesses may undermine probable cause findings, while defense inability to present exculpatory witnesses could support recommendations against referral. PHOs document efforts to secure attendance and reasons for proceeding without witnesses. The limited enforcement power reflects Article 32’s investigative rather than adjudicative nature.