No, the findings of fact and the recommendation from an Article 32 preliminary hearing cannot be used as substantive evidence in a separate, later prosecution. The Article 32 hearing is a preliminary, investigative proceeding, not a trial. Its purpose is to determine probable cause and provide discovery. The findings of the Preliminary Hearing Officer (PHO) are merely their opinion and recommendation to the convening authority; they are not adjudicated facts.
The Article 32 report and its findings are considered inadmissible hearsay at a later court-martial. A prosecutor cannot introduce the PHO’s report as evidence to try and prove that a fact is true. The government must prove all facts at the court-martial itself through live testimony and admissible evidence. The panel must make its own independent findings based only on the evidence presented in the courtroom.
However, the underlying sworn testimony from the Article 32 hearing can be used in a later trial for a specific purpose: impeachment. If a witness testifies at the court-martial and their testimony is inconsistent with what they said under oath at the Article 32 hearing, an attorney can use the official transcript from the Article 32 hearing to confront the witness with their prior inconsistent statement. This is done not to prove the prior statement was true, but to attack the witness’s credibility.