The standard of proof used by the Preliminary Hearing Officer (PHO) in an Article 32 hearing is “probable cause.” This is the sole legal standard for determining whether the charges should be recommended for referral to a general court-martial. It is a significantly lower burden of proof than the “beyond a reasonable doubt” standard required for a conviction at a court-martial.
Probable cause is defined as a reasonable belief that an offense punishable under the UCMJ has been committed and that the accused service member committed it. This standard does not require the PHO to be convinced of the accused’s guilt. Instead, the PHO must simply determine if there is enough credible evidence to make a reasonable person believe that a crime occurred and the accused was the perpetrator. It is a standard based on the totality of the circumstances presented.
In applying this standard, the PHO will weigh the evidence presented by both the government and the defense. This includes witness testimony, sworn statements, investigative reports, and physical evidence. Unlike at a trial, hearsay evidence is generally admissible during an Article 32 hearing, and the PHO can consider it when assessing whether the probable cause threshold has been met for each specification.
It is essential to distinguish this preliminary standard from the trial standard. A finding of probable cause at the Article 32 stage is not a prediction of the trial’s outcome. It is entirely possible for a PHO to find probable cause, yet for a panel to later acquit the accused at trial where the evidence must be proven beyond a reasonable doubt. The probable cause finding simply signifies that the allegations are serious enough to warrant a full trial.