The Manual for Courts-Martial (MCM) does not impose strict limits on the scope of questions in an Article 32 hearing in the same way the Military Rules of Evidence do for a trial. The guiding principle for the hearing is relevance to the Preliminary Hearing Officer’s (PHO) inquiry, which is broader than the relevance standard at a court-martial.
The PHO’s inquiry has two main purposes: to determine if there is probable cause for the charges, and to make a recommendation for the proper disposition of the case. Therefore, questions are generally permissible if they are relevant to either of these issues. This allows for a wider range of questioning than at trial, where the focus is strictly on evidence that proves or disproves the elements of the charged offenses.
For example, questions about an accused’s overall military character and duty performance might be deemed irrelevant at the merits phase of a trial, but they are highly relevant at an Article 32 hearing because they can inform the PHO’s recommendation on disposition. Similarly, the defense might be given more latitude to explore potential motives of an accuser, even if it borders on a “fishing expedition,” if the PHO believes it could uncover information relevant to probable cause.
However, the PHO does have the authority and duty to limit questions that are clearly irrelevant, repetitive, harassing, or intended to embarrass a witness without any probative value. The MCM grants the PHO control over the proceedings, and they can curtail lines of questioning that are not productive or that constitute an abuse of the process. So while the scope is broad, it is not unlimited.