Yes, the accused maintains absolute Fifth Amendment rights against self-incrimination during Article 32 hearings. No adverse inference may be drawn from exercising silence rights, and PHOs must not consider refusal to testify when making findings or recommendations. The right extends beyond testimony to include refusing to answer specific questions if testifying voluntarily.
Tactical considerations influence silence decisions more than trial given the investigative nature and opportunity to influence disposition recommendations. Some accused testify presenting exculpatory information or demonstrating credibility to support alternative disposition. Others remain silent preserving trial options without revealing defense strategies. Partial testimony on beneficial topics while invoking rights on harmful areas remains possible.
PHO instructions must include explaining that silence cannot factor into probable cause determinations or disposition recommendations. Government counsel cannot comment on accused’s silence during arguments. However, practical reality suggests silence may subtly influence perceptions despite legal prohibitions.
If choosing to testify, accused face cross-examination without claiming selective privilege on specific topics. Counsel must carefully prepare clients understanding examination scope and inability to limit responses. Statements become admissible at trial for impeachment even if accused doesn’t testify later. The decision requires balancing immediate benefits of influencing PHO recommendations against preserving trial flexibility and avoiding creating impeachment material.