The Preliminary Hearing Officer (PHO) has substantial authority to question witnesses independently during an Article 32 hearing. The PHO is not merely a passive referee who listens to the presentations by the government and defense counsel. Instead, their role is that of an active and impartial investigator, tasked with conducting a thorough inquiry into the truth of the charges.
This duty to be thorough empowers the PHO to ask their own questions to clarify testimony, explore areas left unaddressed by counsel, or probe into matters they deem relevant to their probable cause determination. If the PHO feels that the questioning from either side has been incomplete or has created ambiguity, they can and often will interject with their own line of inquiry to ensure they have a complete understanding of the facts.
The scope of the PHO’s questioning should remain within the bounds of relevance and impartiality. The questions should be aimed at eliciting facts, not at advocating for one side or intimidating a witness. A PHO who becomes overly prosecutorial or appears to be rehabilitating a failing government witness may draw an objection from defense counsel for abandoning their neutral role.
In practice, most experienced PHOs allow the counsel for both sides to develop the record fully before asking their own questions. They typically reserve their independent questioning for the end of a witness’s testimony to fill in any perceived gaps. This authority is a vital tool that enables the PHO to fulfill their obligation to provide the convening authority with a complete and well-reasoned report, ensuring the integrity of the pretrial investigation.