PHOs rarely testify at courts-martial about their preliminary hearing conclusions, with strong presumptions against converting neutral legal advisors into witnesses subject to examination about quasi-judicial determinations. Military courts recognize allowing PHO testimony would chill independent recommendations if officers faced cross-examination about analytical processes, create confusion between advisory recommendations and binding determinations, and potentially violate deliberative process privilege protecting legal advice. The PHO role parallels staff judge advocates providing convening authority advice, similarly protected from testimonial compulsion.
Narrow exceptions might permit testimony about ministerial matters like hearing procedures or witness availability rather than substantive recommendations. If PHOs witnessed events beyond preliminary hearing testimony, such observations might be separately admissible. Claims of bad faith or unlawful command influence could potentially overcome privilege protecting honest recommendations. However, routine challenges to PHO conclusions through testimony face nearly insurmountable barriers given systemic interests in protecting preliminary hearing independence.
Alternative evidence includes using preliminary hearing transcripts demonstrating witness credibility problems, introducing PHO reports for limited purposes if authorized, calling witnesses about facts PHOs considered rather than conclusions, and arguing implications from recommendations without PHO testimony. The written report typically provides sufficient defense ammunition without requiring personal testimony. Cross-examining PHOs would likely backfire by elevating recommendation importance while risking adverse credibility determinations.
Strategic focus remains exploiting preliminary hearing records rather than pursuing unlikely PHO testimony that judges would probably exclude while potentially alienating military justice officials. The separation between preliminary and trial proceedings protects both stages’ integrity, making direct PHO trial involvement inappropriate absent extraordinary circumstances fundamentally challenging preliminary hearing validity.