When a service member faces a potential general court-martial, the case ordinarily passes through an Article 32 preliminary hearing before charges can be referred. The officer who runs that hearing, the preliminary hearing officer (PHO), prepares a written report that shapes how the convening authority disposes of the case. A natural question for an accused is whether the way they carry themselves during the hearing, their facial expressions, their tone, or their composure, can find its way into that report. The short answer is that the PHO’s lawful focus is narrow, and the accused’s demeanor is generally not a proper subject for comment, but understanding why requires looking at what the report is actually for.
The limited purpose of the preliminary hearing
Article 32 of the Uniform Code of Military Justice, codified at 10 U.S.C. 832, defines a preliminary hearing with a deliberately confined scope. After the 2014 reforms to the statute, the hearing is no longer an open-ended investigation. Rule for Courts-Martial 405 limits the presentation of evidence and the examination of witnesses to matters relevant to four determinations: whether each specification states an offense, whether there is probable cause to believe the accused committed the charged offense, whether the convening authority has court-martial jurisdiction, and a recommendation as to the disposition of the case.
Because the inquiry is built around probable cause, the PHO is not deciding guilt. Probable cause is a reasonable belief based on the totality of the circumstances, the same threshold familiar from Fourth Amendment law, and it sits well below proof beyond a reasonable doubt. Nothing about that legal question turns on how a defendant looks while seated at the table.
What the report must contain
Rule for Courts-Martial 405 directs the PHO to produce a report addressing the four determinations above. For each specification, the officer states the reasoning and conclusions, summarizes the relevant testimony and documentary evidence, and may note observations about the availability and admissibility of evidence at a future trial. The report also captures procedural matters, such as objections lodged by a named victim’s counsel and any explanation when the government declines to seek a pre-referral investigative subpoena. Supplementary information submitted under R.C.M. 405(k) by the accused, the government, or a named victim is attached and considered in the disposition recommendation.
None of these required components calls for an evaluation of the accused’s bearing. The report is organized around evidence and legal sufficiency, not around the personal impression the accused makes.
Witness demeanor versus the accused’s demeanor
There is an important distinction here. A PHO may comment on the credibility and demeanor of witnesses who testify, because credibility bears on whether the evidence supports probable cause. The accused, however, is not a witness unless they choose to testify, and most accused service members do not. The right against self-incrimination means an accused ordinarily presents argument through counsel rather than taking the stand. Where the accused does not testify, there is no testimony to assess, and the accused’s silence or expression carries no evidentiary weight that the PHO may lawfully record.
Even regarding witnesses, the guidance counsels restraint. The PHO may note observations about a witness’s testimony but should avoid substituting their own credibility judgment for the judgment that a military judge or panel members will later make at trial. That caution applies with even greater force to anything resembling a comment on the accused, who has not been convicted of anything and whose courtroom composure has no bearing on the probable cause question.
Why demeanor commentary would be improper
Including remarks about an accused’s demeanor would inject an irrelevant and prejudicial element into a document the convening authority relies on. If a PHO wrote that the accused appeared “smug,” “remorseless,” or “nervous,” that observation would tell the convening authority nothing about whether the elements of an offense are met or whether evidence exists to support the charges. It would instead risk steering a discretionary referral decision on the basis of impression rather than proof. Because R.C.M. 405 ties the report to the enumerated determinations, demeanor commentary about the accused falls outside the authorized content and would be a fair target for defense objection.
When conduct at the hearing can matter
There is a narrow exception worth noting. If the accused engages in actual misconduct during the proceeding, such as disrupting the hearing or threatening a participant, that behavior is not protected from notice simply because it occurred at an Article 32. Conduct of that kind could be documented as a factual event and could even give rise to separate allegations. That is different from a subjective characterization of the accused’s mood or attitude. The line is between recording an objective event and editorializing about the accused’s inner state.
It is also worth remembering that if the accused chooses to make an unsworn statement or to testify, the PHO is then evaluating the substance of what is said, the same way the officer evaluates any other witness, and may note observations consistent with the limited credibility role described above. Counsel routinely weigh this risk when advising whether the accused should speak at all.
Practical guidance for the accused
For a service member preparing for an Article 32 hearing, the practical takeaways are straightforward. First, the report is a probable cause document, not a character assessment, so the case is unlikely to rise or fall on demeanor. Second, defense counsel can and should review the completed report and object to any content that strays beyond the authorized scope, including improper remarks about the accused. Third, the accused retains the right to remain silent, and exercising that right cannot lawfully be held against them in the report.
The accused’s demeanor during an Article 32 hearing is therefore not a proper or routine subject of the PHO’s report. The report exists to answer defined legal questions about the charges and the evidence. While a PHO may comment on the demeanor of testifying witnesses in service of the probable cause analysis, the accused who simply sits through the proceeding is not a witness, and subjective observations about how that person appeared have no authorized place in the document that goes forward to the convening authority.
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.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.