A Preliminary Hearing Officer’s (PHO) bias can be identified through their actions, rulings, and demeanor during the hearing. The defense must be vigilant for signs that the PHO has abandoned their impartial role. Indicators of bias might include consistently ruling against the defense on every objection, cutting off defense cross-examination without good cause, asking prosecutorial questions of witnesses, or making comments that suggest a preconceived opinion about the accused’s guilt.
If defense counsel believes the PHO is biased, they must address it immediately and on the record. The first step is to make a formal objection to the PHO’s specific conduct. For example, “Your Honor, I object to the court’s last question as it appears to be rehabilitating the witness, which is the role of trial counsel.” This puts the PHO on notice and preserves the issue.
If the conduct is pervasive and demonstrates a clear lack of impartiality, the defense can make a motion to have the PHO recused from the hearing. The motion would detail the specific instances of alleged bias and argue that the PHO can no longer conduct a fair and impartial investigation as required by the UCMJ. The PHO would then have to rule on their own recusal, a decision which itself could be reviewed.
Even if a recusal motion is denied, the defense has preserved the issue. The defense can and should detail the PHO’s biased conduct in their written rebuttal to the convening authority, arguing that the PHO’s report and recommendation are tainted and unreliable. If the accused is convicted, the issue of a biased PHO at the preliminary hearing can be raised on appeal as a due process violation.