A preliminary hearing officer, or PHO, who conducts an Article 32 hearing must be impartial. When the defense believes the PHO is biased, the law provides both a standard for measuring that bias and a path for raising it. The defense can identify bias by examining the PHO’s relationships, conduct, and statements, and can address it by challenging the PHO at the right time and on the record. Knowing the governing standard and the available mechanics is essential to protecting the fairness of the preliminary hearing.
The impartiality requirement
Article 32 of the Uniform Code of Military Justice, codified at 10 U.S.C. 832, requires that the preliminary hearing be conducted by an impartial preliminary hearing officer. Impartiality is not a vague aspiration in this context. The PHO’s impartiality is evaluated under the same standards applied to military judges. That borrowing of the judicial standard is significant, because it imports a well developed body of rules about when a presiding official must step aside.
The rules also state plainly that the PHO must not depart from an impartial role and become an advocate for either side. The hearing officer’s job is to evaluate probable cause, jurisdiction, and disposition, not to build the government’s case or to assist the defense. A PHO who crosses that line into advocacy has compromised the impartiality the statute requires.
Identifying bias: relationships and disqualifying connections
The first place the defense should look is the PHO’s connections to the case and the parties. Certain relationships are recognized as disqualifying. An accuser cannot serve as the PHO, because an accuser has a personal stake in the outcome. An officer who is a close personal friend of the accuser is normally disqualified as well. By contrast, the PHO is not disqualified merely because of his or her position within the legal office; some institutional proximity is expected and does not, by itself, establish bias.
In practice, identifying these connections means investigating the PHO’s background and ties. Has the PHO previously been involved in this case in another role? Does the PHO have a personal or professional relationship with the accuser, the alleged victim, the witnesses, or counsel? Has the PHO expressed a view about the case or the accused? These are the kinds of facts that can support a challenge.
Identifying bias: conduct and statements during the hearing
Bias is not always present at the outset. It can emerge from how the PHO behaves once the hearing is under way. Signs that warrant attention include the PHO taking over the questioning to develop the government’s evidence, displaying hostility toward the defense, prejudging probable cause before hearing the evidence, refusing to consider matters the defense is entitled to present, or otherwise acting as an advocate rather than a neutral evaluator. Statements that reveal a fixed opinion about guilt or about the accused’s credibility likewise suggest a loss of impartiality. The defense should monitor the PHO’s conduct throughout and preserve specific examples in the record.
Addressing bias: who may challenge and when
Both sides may raise the issue. The PHO’s impartiality can be questioned by counsel for the accused or by counsel for the government. The timing is flexible. A challenge may be raised before the hearing begins, during the course of the hearing, or after the report has been submitted to the convening authority. That flexibility matters, because some grounds for bias are apparent at the outset while others surface only as the hearing unfolds or even after the report reveals how the PHO reasoned.
As a practical matter, the defense ordinarily raises a challenge as soon as the basis for it becomes known. Raising it promptly creates a clear record, gives the PHO the chance to step aside or explain, and avoids any argument that the defense sat on the issue. When grounds emerge later, the defense can still raise them at that point, including after the report if the report itself shows partiality.
How to make and preserve the challenge
To address bias effectively, the defense should do more than assert it. The challenge should state the specific facts that show the PHO cannot be impartial, measured against the military judge disqualification standard. It should identify the disqualifying relationship, the advocacy conduct, or the prejudgment at issue. And it should be placed clearly on the record, because the record is what allows the convening authority and, later, a military judge to evaluate the claim.
If the PHO does not step aside and the defense believes the hearing was tainted by bias, the issue does not necessarily end there. The defense can bring the matter to the attention of the convening authority and can preserve it for later litigation before the military judge once charges are referred. Because the PHO’s report is advisory and the convening authority makes the referral decision, demonstrating that the report was the product of a biased officer can be an important argument both before referral and afterward.
The bottom line
A PHO must be impartial, judged by the same standards that apply to military judges, and must never become an advocate for either side. The defense identifies bias by scrutinizing disqualifying relationships, especially any tie to the accuser, and by watching for advocacy, hostility, or prejudgment during the hearing. The defense addresses bias by challenging the PHO with specific facts, on the record, at the earliest appropriate moment, and by preserving the issue for the convening authority and the military judge.
This article provides general information and is not legal advice. A service member who believes the preliminary hearing officer in their case is biased should consult qualified military defense counsel, who can evaluate the facts and raise the challenge properly under the current rules.
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.
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