No, the findings of fact made by the Preliminary Hearing Officer (PHO) in their Article 32 report are not admissible as evidence at a subsequent court-martial. The PHO’s report, including their factual summaries and conclusions about probable cause, is considered a pretrial, advisory document intended solely for the convening authority. It has no evidentiary value at the trial itself.
The trial is a de novo proceeding, meaning it starts fresh. The court-martial panel (or military judge in a bench trial) must make its own findings of fact based only on the evidence presented to them in court. They are prohibited from seeing or being influenced by the PHO’s earlier conclusions. Introducing the PHO’s findings would be highly prejudicial and would invade the province of the panel as the sole finders of fact on the ultimate issue of guilt.
The reasoning for this exclusion is clear. The standard of proof at the Article 32 hearing (probable cause) is much lower than at trial (beyond a reasonable doubt). The rules of evidence are relaxed at the hearing, and the PHO may have considered hearsay or other evidence that would be inadmissible at trial. Allowing the panel to know what the PHO concluded would contaminate their independent judgment.
While the findings themselves are inadmissible, the underlying testimony from the Article 32 hearing can be used. The transcript can be used to impeach a witness if their trial testimony is inconsistent with what they said at the hearing. However, the PHO’s opinion and analysis of that testimony remain firmly outside the scope of what can be presented to the trial court.