The preliminary hearing officer, or PHO, plays a defined role in a general court-martial. Under Article 32 of the Uniform Code of Military Justice (UCMJ) and Rule for Courts-Martial (RCM) 405, the PHO presides over the preliminary hearing, considers the evidence the parties present, and submits a written report with findings and recommendations to the convening authority. A question that sometimes arises is whether that same officer later takes the witness stand at the court-martial to testify about the hearing or the contents of the report. As a general matter, the PHO does not become a trial witness who narrates the report, and there are good structural reasons for that.
The PHO’s job ends with the report
The Article 32 preliminary hearing is a pretrial proceeding with a limited purpose. RCM 405 directs the PHO to determine whether there is probable cause to believe an offense was committed and that the accused committed it, to consider whether the convening authority has court-martial jurisdiction, to consider the form of the charges, and to recommend a disposition. The PHO must remain impartial and may not become an advocate for either side. The product of all this is the report, which summarizes the relevant testimony and documentary evidence and sets out the officer’s reasoning, conclusions, and recommendations for each specification.
Once that report is delivered, the PHO’s function is essentially complete. The convening authority, advised by the staff judge advocate, decides how to dispose of the charges. Nothing in the design of the process contemplates the PHO returning later to testify about how the hearing went or what the report means.
Why the PHO is not a trial witness about the report
Several principles explain why the PHO does not ordinarily testify based on the report at the court-martial.
First, the report is not evidence of guilt. The preliminary hearing tests probable cause and advises the disposition decision. It does not establish the elements of an offense for the panel. The court-martial is a separate proceeding in which guilt is decided on evidence presented anew, under the Military Rules of Evidence, before the members or the military judge. The PHO’s probable-cause conclusion has no place in that determination, so there is nothing for the PHO to relate to the factfinder.
Second, allowing the PHO to testify about the report would invite hearsay and improper opinion. The report summarizes what others said and offers the officer’s assessment of probable cause. If the PHO recited those summaries or conclusions to the panel, the testimony would be an out-of-court characterization of other witnesses’ statements and an opinion on matters reserved to the factfinder. The proper course is for the trial counsel to call the actual witnesses, who testify directly and are subject to cross-examination at trial.
Third, the PHO’s required impartiality cuts against a later advocacy-tinged appearance. An officer who presided as a neutral cannot be repurposed as a witness whose testimony favors one party without undermining the neutral role the rule demands.
Narrow situations where a PHO might testify
Saying the PHO does not testify about the report’s substance is not the same as saying a PHO can never be a witness about anything. In limited circumstances, a party might call the PHO to testify about a discrete, collateral fact rather than the merits, for example a procedural dispute over what occurred during the hearing, an allegation that the hearing was conducted improperly, or a question about the availability or handling of a witness or exhibit. Even then, the testimony would concern the conduct of the proceeding, not the officer’s probable-cause judgment, and a military judge would weigh relevance and any objection under the evidentiary rules. These are exceptions tied to specific litigated issues, not a routine feature of trial.
How the hearing’s content actually reaches trial, if at all
Because the report itself does not go to the panel as proof, the information developed at the preliminary hearing reaches the court-martial through ordinary means. Witnesses who testified at the hearing can be called to testify at trial. A transcript or recording of prior testimony can sometimes be used for impeachment or, under specific evidentiary exceptions, as substantive evidence if a witness becomes unavailable, but that use depends on the rules governing prior statements and former testimony, not on the PHO relaying it. The defense, for its part, often mines the hearing record for inconsistencies to use in cross-examination at trial. In each of these paths, the source is the underlying testimony and exhibits, not the PHO’s narration of the report.
Bottom line
In the ordinary course, the PHO does not testify at the court-martial based on the report. The report serves a pretrial, probable-cause function for the convening authority, it is not evidence of guilt, and having the impartial hearing officer recount its summaries or conclusions to the panel would raise hearsay, opinion, and neutrality problems. The information the hearing surfaced reaches trial through the live testimony of the actual witnesses and the documentary evidence, presented anew under the Military Rules of Evidence. Only in narrow, collateral disputes about how the hearing itself was conducted might a PHO ever be called as a witness, and even then not to deliver the substance of the report to the factfinder.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.