Before a serious case is referred to a general court-martial, the Uniform Code of Military Justice (UCMJ) requires a preliminary hearing under Article 32, run by a preliminary hearing officer, or PHO. The PHO listens to evidence, evaluates it, and produces a report containing conclusions and recommendations. A natural question is whether those conclusions, the PHO’s findings of fact, can later be put before the court-martial as evidence. The answer is essentially no. The PHO’s findings are advisory determinations for the convening authority, not evidence of guilt or innocence, and they are not admissible at trial to prove the truth of what they assert.
What the PHO actually does
Article 32 directs that a preliminary hearing be held before charges are referred to a general court-martial. The hearing is limited in purpose. Its objectives are 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 jurisdiction, to consider the form of the charges, and to recommend a disposition. The PHO then prepares a report that includes reasoning and conclusions on these issues, a summary of the relevant witness testimony and documentary evidence presented, and observations about the testimony and about the availability and admissibility of evidence at trial.
Crucially, the PHO is not a factfinder deciding guilt. The PHO is making a screening recommendation. The members of a court-martial, or the military judge in a bench trial, are the body that decides guilt beyond a reasonable doubt, and they do so based on the evidence admitted at trial, not on the PHO’s earlier assessment.
Why the findings are not admissible
Several principles converge to keep the PHO’s findings out of the trial. First, the findings are opinion and conclusion about probable cause, a lower standard than proof beyond a reasonable doubt, formed under relaxed procedures. Offering them to the members to prove that the accused committed the offense would be offering an out-of-court conclusion for its truth, which is hearsay, and it would also invade the province of the factfinder by substituting the PHO’s view for the members’ independent judgment. Second, the preliminary hearing operates under loosened evidentiary rules. The PHO may consider evidence that would not be admissible at a court-martial, so the report can rest on material the members are never supposed to see. Importing the PHO’s conclusions would smuggle that inadmissible foundation into the trial through the back door. Third, allowing the members to learn that a hearing officer already concluded there was probable cause would be unfairly prejudicial, suggesting that an official screen had effectively pre-judged the case.
For all these reasons, the report and its findings function as guidance for the convening authority deciding whether and how to refer charges, not as proof at the trial that follows.
The important distinction: underlying evidence versus the report
It is essential to separate the PHO’s conclusions from the raw material the PHO considered. The conclusions are not admissible, but the underlying evidence can independently make its way into the trial on its own terms.
Witness testimony is the clearest example. A witness who testified at the Article 32 hearing can be called to testify at trial, and what that witness said earlier may become relevant. Prior statements made at the hearing can be used to impeach a witness who testifies differently at trial, and in some circumstances Article 32 testimony may qualify as prior testimony or otherwise be used as substantive evidence under the rules of evidence. But in each of these situations the evidence comes in because it independently satisfies an evidentiary rule, not because the PHO summarized or relied on it. The path is through the witness and the rules of evidence, not through the report.
What about using the report defensively or for other purposes
The non-admissibility of the findings is about offering them as substantive evidence of guilt. The report still has uses outside the trial on the merits. It informs the convening authority’s referral decision, it can support motions, and discrepancies between the hearing and trial can be explored through proper impeachment of witnesses. A party who wants to use something that surfaced at the Article 32 hearing must connect it to an admissible vehicle, such as a testifying witness or a qualifying prior statement, rather than simply reading the PHO’s conclusions to the members.
Conclusion
Findings of fact by the PHO are not admissible at trial as evidence of guilt. The Article 32 preliminary hearing is a probable-cause screening conducted under relaxed rules, and the PHO’s report is advice to the convening authority, not proof for the court-martial. Putting the PHO’s conclusions before the factfinder would be hearsay, would rely on material that may be inadmissible at trial, and would unfairly suggest the case was pre-judged. The underlying evidence, especially witness testimony, can still reach the trial, but only through independent evidentiary rules and the witnesses themselves. A service member with questions about how Article 32 material may be used should consult qualified military defense counsel.
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.