No, the accused absolutely does not have to testify at an Article 32 preliminary hearing. The accused possesses the right against compulsory self-incrimination under both the Fifth Amendment of the U.S. Constitution and Article 31 of the UCMJ. This is a fundamental right that applies at all stages of the military justice process, including the pretrial hearing.
The Preliminary Hearing Officer (PHO) is required to advise the accused of their rights at the beginning of the hearing, including their right to remain silent. The accused cannot be forced to take the stand, and their decision not to testify cannot be used against them as evidence of guilt. The PHO cannot draw any adverse inference from the accused’s silence when making a probable cause determination.
While the accused cannot be compelled to testify, they do have the right to make a statement if they choose to do so. This can be done in one of two ways. The accused can make an unsworn statement, where they can speak to the PHO without being subject to cross-examination by the government counsel. Alternatively, the accused can elect to give a sworn statement, meaning they testify under oath and are then subject to cross-examination, just like any other witness.
The decision of whether to testify is a critical tactical choice made by the accused in close consultation with their defense counsel. Testifying can provide an opportunity to present their side of the story directly, but it also opens them up to questioning and potential damage to their credibility. In most cases, defense counsel will advise their client to exercise their right to remain silent at this early stage of the proceedings.