Yes, the accused’s demeanor during the Article 32 preliminary hearing can be, and sometimes is, considered and mentioned in the Preliminary Hearing Officer’s (PHO) report. While the primary focus is on the evidence, the PHO is an observer of the entire proceeding, and human dynamics are a part of that. The PHO’s report is a comprehensive summary for the convening authority, and this can include observations about the accused.
If the accused testifies, their demeanor on the stand is clearly a factor in the PHO’s assessment of their credibility, just as it would be for any other witness. The PHO might note whether the accused appeared candid, evasive, or remorseful during their testimony. This observation would be directly relevant to the weight the PHO gives the accused’s statements.
Even if the accused does not testify, an extreme or unusual demeanor might be noted if the PHO finds it relevant to the overall context of the case. For example, if an accused is openly disruptive, contemptuous, or appears completely disengaged and apathetic throughout the proceedings, a PHO might mention this in the report. This could be relevant to the PHO’s recommendation on disposition, as it might speak to the accused’s character or potential for rehabilitation.
However, PHOs are generally cautious about placing too much emphasis on demeanor, as it can be subjective and misleading. An experienced PHO understands that an accused may appear nervous or detached due to the stress of the situation rather than guilt. Therefore, while demeanor can be a factor considered and even mentioned, it is typically a minor piece of the puzzle, subordinate to the hard evidence presented.