18. Voir Dire and Challenges

Last Updated: 4/6/23

Chapter 18

Voir Dire & Challenges

 

1.       Introduction

2.       Background

3.       Challenging the Entire Panel

4.       Investigating Court Members

5.       Voir Dire

6.       Challenges for Cause—Generally

7.       Challenges for Cause—Actual Bias

8.       Challenges for Cause—Implied Bias

9.       Challenges for Cause—Logistics

10.       Peremptory Challenges Generally

11.       Discriminatory Peremptory Challenges—Batson

12.       Practice Tips:  Voir Dire Goals and How to Reach Them

 

I. Introduction

A.  In General. The Sixth Amendment right to a jury trial does not apply to military Servicemembers. However, a military accused enjoys the right to trial before court members, as provided by Congress in Article 25, UCMJ. See United States v. Witham, 47 M.J. 297, 301 (C.A.A.F. 1997), cert. denied, 522 U.S. 1115 (1998) (“Again, we note that a military accused has no right to a trial by jury under the Sixth Amendment. He does, however, have a right to due process of law under the Fifth Amendment, and Congress has provided for trial by members at a court-martial.”) (citations omitted). To ensure the impartiality of panel members, they are subject to voir dire by the military judge and counsel. Article 41, UCMJ, and R.C.M. 912 control the process. Both sides have an unlimited number of challenges for cause against panel members. See Article 41(a)(1), UCMJ. Both sides are also allowed one peremptory challenge of the members. See Article 41(b)(1).

B. The Sixth Amendment right to a trial by an impartial jury of the “state” does not apply to the military because panel members are selected not from the “state” but from those in the military service per Article 25, UCMJ. Whelchel v. McDonald, 340 U.S. 122, 127 (1950). The Sixth Amendment right to an “impartial” jury, however, applies to military practice, through the Due Process Clause.

C. “Part of the process due is the right to challenge for cause and challenge peremptorily the members detailed by the convening authority.” Witham, 47 M.J. at 301

II. Background

A. The Rules for Courts-Martial describe the sole purpose of voir dire to be a conduit for an intelligent use of challenges. R.C.M. 912(d) discussion.

1. “The purpose of voir dire and challenges is, in part, to ferret out facts, to make conclusions about the members’ sincerity, and to adjudicate the members’ ability to sit as part of a fair and impartial panel.” United States v. Bragg, 66 M.J. 325, 327 (C.A.A.F. 2008).

2. Under Article 25, UCMJ, the convening authority personally selects panel members with two significant limitations:

a. The convening authority cannot select members in any manner that systematically excludes a group of otherwise qualified candidates (for example, potential members cannot be excluded on the basis of rank, religion, race, or gender).

b. The convening authority cannot “stack” a panel to obtain a certain result (for example, cannot pick members who will dole out harsh sentences). United States v. Riesbeck, 77 M.J. 154, 165 (C.A.A.F. 2018).

B. Impartial Members. Court members must be impartial.  To ensure this impartiality, there is no limit on the number of challenges for cause against panel members. Article 41(a), UCMJ. “The reliability of a verdict depends upon the impartiality of the court members. Voir dire is fundamental to a fair trial.” United States v. Jefferson, 44 M.J. 312 (C.A.A.F. 1996).

C. Military Judge Controls Voir Dire. Under R.C.M. 912(d), “[t]he military judge may permit the parties to conduct the examination of members or may personally conduct the examination.” While not a right, the discussion to R.C.M. 912(d) suggests a preference for allowing counsel to question members.

D. Order Of March: While the 2016 Military Justice Act made no changes to the voir dire process, the Rules governing the impanelment process resulted in significant procedural changes.  The Army process generally follows this order:

1. Selection of members.

2. Drafting of a court-martial convening order (CMCO).

3. Selected members complete questionnaires.

4. Case is referred to a convened panel.

5. After case is docketed, members are excused who are unavailable for the trial date and alternate members are added.

6. Counsel review questionnaires for the members who will sit.

7. On the day of trial, members come to court and are sworn as a group; the military judge then asks the entire group questions (Military Judges’ Benchbook recommends preliminary questions for group voir dire).

8. Both counsel (normally with trial counsel going first and defense second) ask the group questions.

9. Parties may request permission from the military judge to question member(s) individually as necessary.

10. After all questioning, trial counsel asserts challenges for cause.

11. Defense then asserts challenges for cause.

12. The remaining members are issued a random number from the random number generator on the Army JAG Corps’ website. The court reporter is responsible, in most instances, to run the random number generator. A print out from the random number generator is made an appellate exhibit. The purpose of the random numbers is to enable impanelment of the correct number of members, and to identify any authorized alternates. See R.C.M. 912A.

13. Trial counsel can use a peremptory challenge and then defense counsel can use a peremptory challenge.

14. The remaining members required to be impaneled (based on the directions of the convening authority and the type of court-martial concerned) are seated. This includes any alternate members as well. RCM 912A. An alternate is a non-deliberating member who the convening authority may authorize to be impaneled with the members, who will serve as a deliberating member only on the excusal of a member after impanelment.  RCM 912A.

15. Finally, excess and challenged members are excused and the trial proceeds

III. Challenging the Entire Panel

A. There may be cases in which the defense has some reason to believe the military panel, or the “venire,” has been improperly selected. In such cases, defense may wish to challenge the entire panel. R.C.M. 912(b) sets out the procedure for mounting such a challenge.

1. Before voir dire begins, a party may move to stay the proceedings on the ground that members were selected improperly.

2. This motion must contain an offer of proof that, if true, would constitute improper selection of members in order to be entitled to present evidence. If the military judge determines the convening authority improperly selected the members, the military judge shall stay proceedings until members are properly selected.

3. Forfeiture. Failure to make a timely motion under this section forfeits the issue of improper selection except where:

a. The issue relates to the minimum required number of members under R.C.M. 501(a);

b. The member does not have the requisite qualifications under R.C.M. 502(a)(1) (e.g., the member does not satisfy Article 25 criteria; is not active duty, is not a commissioned or warrant officer, or is an enlisted member where the accused has not requested enlisted members); or

c. The accused has requested a panel comprised of one-third (⅓) enlisted members, and they are not present or there is an inadequate explanation for their absence. See R.C.M. 503(a)(2).

4. Defense counsel challenging panel selection frequently allege that the panel was “packed” or “stacked” to achieve a desired result; panel stacking is prohibited. Riesbeck, 77 M.J. at 165; United States v. Roland, 50 M.J. 66, 69 (C.A.A.F. 1999); United States v. White, 48 M.J. 251, 254 (C.A.A.F. 1998).

B. Matters Considered By Convening Authority. Under R.C.M. 912(a)(2), a copy of written materials considered by the convening authority in selecting the detailed members shall be provided to any party upon request. This information includes the SJA’s advice to the convening authority for panel selection, the nominations from subordinate commanders, and other documents presented to the convening authority. While the rule states that “such materials pertaining solely to persons who were not selected for detail as members” need not be provided, the military judge has the authority to direct such information be disclosed for good cause.

C. Courts martials are not required to have unanimous verdicts post-Ramos. United States v. Pritchard, 82 M.J. 686, 690 (A. Ct. Crim. App. 2022). Defense argued that the Supreme Courts holding in Ramos v. Louisiana,     U.S.    , 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020) should apply to the military. The military judge granted the motion. The government filed a writ of prohibition. The ACCA granted the writ and found that Ramos did not apply to the military. Additionally, CAAF summarily reviewed this in United States v. Causey, No. 22-0196/NA, 2022 CAAF LEXIS 618, at *1 (C.A.A.F. Aug. 26, 2022) and denied the petition. But see, United States v. Cunningham, No. 23-0027/AF, 2022 CAAF LEXIS 888, at *1 (C.A.A.F. Dec. 13, 2022) (granting petition concerning whether Ramos applies to the military).

D. Theories for Attacking Panel Selection – In selecting panel members, the convening authority cannot systematically exclude otherwise qualified personnel from serving. United States v. Dowty, 60 M.J. 163, 171 (C.A.A.F. 2004); Roland, 50 M.J. at 68-69. Appellate courts review systematic exclusion de novo. The initial burden is on the defense to establish the improper exclusion of qualified personnel from the process. Then, if established, the burden switches to the government to show by competent evidence that the member selection process was free from the impropriety. United States v. Bartee, 76 M.J. 141, 143 (C.A.A.F. 2017), cert. denied, 138 S.Ct. 637 (2018).  

1. Attacking Selection – Exclusion of Nominees by Rank

a. General rule. Convening authority cannot systematically exclude personnel from panel selection based on rank. Dowty, 60 M.J. at 171 (“[S]ystemic exclusion of otherwise qualified potential members based on an impermissible variable such as rank is improper.”); United States v. Bertie, 50 M.J. 489, 492 (C.A.A.F. 1999) (“[W]e have also held that deliberate and systematic exclusion of lower grades and ranks from court-martial panels is not permissible.”); United States v. Morrison, 66 M.J. 508, 510 (N-M Ct. Crim. App. 2008). However, Servicemembers in the grades of E-1 and E-2 are presumptively unqualified under Article 25 and may be excluded from selection. United States v. Yager, 7 M.J. 171, 173 (C.M.A. 1979) (exclusion of persons in grades below E-3 permissible where there was a demonstrable relationship between exclusion and selection criteria embodied in Article 25(d)(2)).

b. Rationale. United States v. Benson, 48 M.J. 734, 739-40 (A.F. Ct. Crim. App. 1998). Convening authority violated Article 25 by sending memorandum to subordinate commands directing them to nominate “officers in all grades and NCOs in the grade of master sergeant or above” and then by failing to select members below the rank of master sergeant (E-7). Convening authority testified that he did not intend to violate Article 25, but he never selected a member below the grade of E-7; AFCCA held that systematic exclusion of junior enlisted members is inappropriate, as most junior enlisted have sufficient education and experience as to be eligible to serve (specifically, many E-4s have served at least 5 years on active duty and 88 percent have some form of post-secondary education, and the majority of E-5s have served 10 or more years on active duty and 18 percent have an associate’s or higher degree).

c. Examples. United States v. Daigle, 1 M.J. 139, 141 (C.M.A. 1975) (improper for convening authority to systematically exclude lieutenants and warrant officers); United States v. Smith, 37 M.J. 773, 776 (1993) (A.C.M.R. 1993) (improper for convening authority to return initial panel selection documents and direct subordinate commanders to provide Soldiers in the grades of E-7 and E-8). Cf. United States v. Nixon, 33 M.J. 433, 435 (C.M.A. 1991) (noting a panel consisting of only members in the grades of E-8s and E-9s creates an appearance of impropriety, but affirming because the convening authority testified he complied with Article 25 and did not use rank as a criterion).

d. Paperwork cannot inadvertently exclude qualified personnel. United States v. Kirkland, 53 M.J. 22, 24-5 (C.A.A.F. 2000). The SJA solicited nominees from subordinate commanders via a memo signed by the SPCMCA. The memo sought nominees in various grades. The chart had a column for E-9, E-8, and E-7, but no place to list a nominee in a lower grade. To nominate E-6 or below, nominating officer would have had to modify form. No one below E-7 was nominated or selected for the panel. CAAF held that where there was an “unresolved appearance” of exclusion based on rank, “reversal of the sentence is appropriate to uphold the essential fairness . . . of the military justice system.”

e. May replace nominees with others of similar rank. United States v. Ruiz, 46 M.J. 503, 511 (A.F. Ct. Crim. App. 1997), aff’d, 49 M.J. 340 (C.A.A.F. 1998) (convening authority did not improperly select members based on rank when, after rejecting certain senior nominees from consideration for valid reasons, he requested replacement nominees of similar ranks to keep the overall balance of nominee ranks relatively the same).

2. Attacking Selection – Exclusion Of Nominees Based On Unit Of Assignment. United States v. Brocks, 55 M.J. 614, 616-617 (A.F. Ct. Crim. App. 2001), aff’d, 58 M.J. 11 (C.A.A.F. 2002). Base legal office intentionally excluded all officers from the medical group from the nominee list, because all four alleged conspirators and many of the witnesses were assigned to that unit. Citing United States v. Upshaw, 49 M.J. 111, 113 (C.A.A.F. 1998), the court said, “[a]n element of unlawful court stacking is improper motive. Thus, where the convening authority’s motive is benign, systematic inclusion or exclusion may not be improper.” Held: Exclusion of medical group officers did not constitute unlawful command influence.

3. Difficult To Mount Challenges: Hard To Find Evidence Of Impropriety.

a. Paperwork errors may not be enough to show impropriety. Roland, 50 M.J. at 69 (SJA’s memo soliciting nominees E-5 to O-6 was not error); Upshaw, 49 M.J. at 113 (good faith administrative error resulting in exclusion of otherwise eligible members (E-6s) was not error).

b. Convening authority selecting commanders. United States v. White, 48 M.J. 251, 254-55 (C.A.A.F. 1998). A CA who issues a memorandum directing subordinate commands to include commanders, deputies and first sergeants in the court member applicant pool, and then proceeds to select more commanders than non-commanders for court-martial duty does not engage in court-packing absent evidence of improper motive or systematic exclusion of a class or group of candidates. No systematic exclusion because the CA’s memo instructed that “staff officers and NCOs” and “your best and brightest staff officers” should be nominated to serve as member. See Effron, J., and Sullivan, J., concurring in the result, but criticizing the majority’s willingness to equate selection for command with selection for panel duty. 

IV. Investigating Court Members

A. Panel Questionnaires. Under R.C.M. 912(a)(1), trial counsel may (and shall upon request of defense counsel) submit to members written questionnaires before trial. “Using questionnaires before trial may expedite voir dire and may permit more informed exercise of challenges.” R.C.M. 912(a)(1) discussion.

1. Required questions: Under R.C.M. 912(a)(1), the following information shall be requested upon application by defense counsel and may be requested by trial counsel in written questionnaires: date of birth; sex; race; marital status and sex, age, and number of dependents; home of record; civilian and military education, including, when available, major areas of study, name of school or institution, years of education, and degrees received; current unit to which assigned; past duty assignments; awards and decorations received; date of rank; and whether the member has acted as accuser, counsel, investigating officer, convening authority, or legal officer or staff judge advocate for the convening authority in the case, or has forwarded the charges with a recommendation as to disposition.

2. Additional questions: Under R.C.M. 912(a), “Additional information may be requested with the approval of the military judge.”

3. Format: Under R.C.M. 912(a), “Each member’s responses to the questions shall be written and signed by the member.” Members also includes any alternate members.

B. Disclosure By Members At Trial.

1. Members under oath. Before voir dire, trial counsel administers to panel members an oath to “answer truthfully the questions concerning whether you should serve as a member of this court-martial.” DA Pam 27-9, Military Judges’ Benchbook, 29 February 2020 at 48; see also R.C.M. 807(b)(2) discussion (providing suggested oath for panel members); R.C.M. 912(d) discussion (“If the members have not already been placed under oath for the purpose of voir dire . . . , they should be sworn before they are questioned.”) (citation omitted); Electronic Military Judges’ Benchbook, available at https://www.jagcnet.army.mil/EBB/

2. Instruction about impartiality. After panel members are sworn, the military judge instructs, “With regard to challenges, if you know of any matter that you feel might affect your impartiality to sit as a court member, you must disclose that matter when asked to do so.” Electronic Military Judges’ Benchbook, Court Members Contested Script available at https://www.jagcnet.army.mil/EBB/

3. Broad inquiry. The military judge asks 28 standard questions during group voir dire, including, “Having seen the accused and having read the charge(s) and specification(s), does anyone feel that you cannot give the accused a fair trial for any reason?” Id.

4. Members have duty to disclose.

a. United States v. Albaaj, 65 M.J. 167, 170 (C.A.A.F. 2007). Accused’s brother testified as a merits witness. He was also recalled briefly as a defense sentencing witness, offering evidence in extenuation and mitigation. One of the members, LTC M, had a previous working relationship with the brother, that defense described as “extremely antagonistic.” During voir dire, military judge instructed the members to disclose any matter that might affect their partiality. During trial, the defense called the brother as a witness and LTC M did not indicate at any time that he knew him, even after he recognized him. Following a DuBay hearing, military judge found LTC M and the brother had professional contact while the brother was at Range Control and the member developed negative impressions of the brother that were memorialized in several e-mails. However, LTC M testified that, between the last e-mail and the trial (a period of 15 months), LTC M “developed a favorable opinion” of the brother. At the DuBay hearing, military judge found that LTC M “did not fail to honestly answer a material question on voir dire and that [LTC M] did not fail to later disclose his knowledge of [the brother] in bad faith.” CAAF reversed. Applying the test from McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984), CAAF found that LTC M violated his duty of candor as a panel member. First, LTC M incorrectly indicated that he did not know the brother during voir dire and then “fail[ed] to correct the misinformation.” Second, LTC M “failed to disclose information that was material to the conduct of a fair and impartial trial” because as a result of the nondisclosure, the parties were unaware of LTC M’s relationship with the brother. Third, the “correct response . . . would have provided a valid basis for challenge.” Applying the implied bias standard, CAAF found that “[a] reasonable public observer of this trial would conclude that [LTC M’s] actions injured the perception of fairness in the military justice system.”

b. United States v. Commisso, 76 M.J. 315, 321-323 (CAAF 2016)(finding that dishonesty during voir dire prevented the accused from exercising his right to challenge members, where the members did not answer correctly about their involvement in the Sexual Assault Review Board process and the judge did not take sufficient remedial action to determine whether a challenge for cause should be granted once the misstatements were identified).

C. Disclosure by Trial Counsel or Government.

1. Affirmative duty to disclose. United States v. Glenn, 25 M.J. 278, 280 (C.M.A. 1987). Case reversed because Deputy Staff Judge Advocate failed to disclose that member was his sister-in-law. Court reversed even though member signed affidavit swearing that she had no prior knowledge of the case and was not affected by the relationship.

2. Close calls and trial counsel duty to disclose. United States v. Modesto, 43 M.J. 315 (C.A.A.F. 1995). Colonel was charged with conduct unbecoming (performing as female impersonator at gay club, sodomy with another male, indecent touching with another male, cross-dressing in public). Trial counsel failed to disclose that male panel member had dressed as a woman at Halloween Party. Court held that reversal was unwarranted because incident would not have been valid grounds for challenge, so effective voir dire was not prevented. Despite the outcome, the CAAF noted, “Both the SJA and the trial counsel have an affirmative duty to disclose any known ground for challenge for cause.” Id. at 318.

3. Practice Point: Government should liberally disclose information that might be a basis for a challenge for cause.

D. Defense Duty to Discover.

1. Under R.C.M. 912(f)(4), most grounds for challenging a member may be waived.  Membership of enlisted members in the same unit as the accused is no longer grounds for challenge and removal.

2. United States v. Dunbar, 48 M.J. 288, 290 (C.A.A.F. 1998). When panel member questionnaire contains information that may result in disqualification, the defense must make reasonable inquiries into the member’s background either before trial or during voir dire. The Government may not be required to provide the background for the disqualifying information in every situation. The accused was charged with dereliction of duty, conduct unbecoming an officer, and fraternization. A member’s questionnaire revealed that she had testified as an expert witness in child-abuse cases prosecuted by the trial counsel. The defense failed to conduct voir dire on this issue. The defense waived the issue by failing to conduct voir dire after reviewing the questionnaire and then failing to exercise a causal or peremptory challenge. There was no additional affirmative requirement for the Government to disclose the information.

3. United States v. Briggs, No. ACM 35123 (f rev), 2008 CCA LEXIS 227 (A.F. Ct. Crim. App. June 13, 2008) (unpublished). Accused was charged with selling survival vests and body armor taken from C-5s. This equipment was used to protect the flight crews operating these aircrafts. On appeal, defense argued for a new sentencing hearing because a member was a pilot. Essentially arguing implied bias, the defense claimed that the member, as a pilot, could not have been impartial because the crime involved “stealing safety and survival gear off an aircraft.” First, the court noted the Supreme Court standard: “[F]or an accused to be entitled to a new trial due to an incorrect voir dire response the ‘party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.’” (quoting McDonough Power Equip., Inc., 464 U.S. at 556). In this case, the court held the member did not fail to honestly answer a material question. Rather, he truthfully stated he worked with C-5 aircraft, which the accused “with his years and background in the Air Force” would have understood to mean the member was a pilot. In biting language, the court noted, “[T]here is no evidence that the member failed to honestly answer a material question by not stating the obvious.”

V. Voir Dire

A. Purposes Of Voir Dire. The questioning of panel members (known as voir dire) exists so parties can intelligently exercise both challenges for cause and peremptory challenges. See R.C.M. 912(d) discussion, (“The opportunity for voir dire should be used to obtain information for the intelligent exercise of challenges.”); Bragg, 66 M.J. at 327 (“The purpose of voir dire and challenges is, in part, to ferret out facts, to make conclusions about the members’ sincerity, and to adjudicate the members’ ability to sit as part of a fair and impartial panel.”). In addition to this primary purpose, there are three secondary purposes of voir dire:

1. Educate the panel and defuse weaknesses in the case. But see R.C.M. 912(d) discussion (“[C]ounsel should not purposely use voir dire to present factual matter which will not be admissible or to argue the case”).

2. Establish a theme.

3. Build rapport with members

4. See also Francis A. Gilligan and Fredric I. Lederer, Court-Martial Procedure § 15-53.00 at 15-29 (3d ed. 2006) (“Although voir dire can be used for many other purposes, such as highlighting various issues, educating the court members, or building rapport between counsel [and] members, such uses are improper unless done in the otherwise proper process of voir dire.”); Id. n.164 (“This is not to deny that voir dire may play a legitimate tactical role. Few questions can be asked in an entirely neutral fashion, and to require neutrality might well defeat the very purpose of voir dire. . . . The key, however, is that questions may not be asked for other purposes; they must have independent legitimacy as a proper part of the process of voir dire and challenges.”).

B. Military Judge Controls Voir Dire – In General.

R.C.M. 912(d). Challenge of selection of members; examination and challenges of members. The military judge may permit the parties to conduct the examination of members or may personally conduct the examination. In the latter event the military judge shall permit the parties to supplement the examination by such further inquiry as the military judge deems proper or the military judge shall submit to the members such additional questions by the parties as the military judge deems proper. A member may be questioned outside the presence of the other members when the military judge so directs."

1. Rule. “Generally, the procedures for voir dire are within the discretion of the trial judge.” Jefferson, 44 M.J. at 318. See also R.C.M. 912(d) (printed above) and discussion (“The nature and scope of the examination of members is within the discretion of the military judge.”).

2. Broad latitude to military judge in controlling voir dire. “Neither the UCMJ nor the Manual for Courts-Martial gives the defense the right to individually question the members.” United States v. Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001) (upholding military judge’s practice of requiring written voir dire questions from counsel seven days before trial and denying defense and trial counsel requests to personally question the members). The court suggested that the military judge who reserves voir dire to the bench must conduct sufficient questioning to expose grounds for challenge: “The military judge’s questions properly tested for a fair and impartial panel and allowed counsel to intelligently exercise challenges.” Id. at 137.

3. Military judge may reserve voir dire to the bench.

a. Before impaneled. United States v. Belflower, 50 M.J. 306, 309 (C.A.A.F. 1999) (holding military judge did not abuse his discretion in prohibiting individual voir dire by defense counsel of four members where counsel did not ask any questions on group voir dire that would demonstrate the necessity for individual voir dire).

b. After impaneled. United States v. Lambert, 55 M.J. 293, 295-296 (C.A.A.F. 2001). Right after the members returned a verdict of guilty to one specification of indecent assault, the civilian defense counsel asked military judge to allow voir dire of the members because one member took a book titled Guilty as Sin into the deliberation room. The military conducted voir dire of the member who brought the book into the deliberation room, but did not allow the defense an opportunity to conduct individual or group voir dire. Noting that neither the UCMJ nor the Manual gives the defense the right to individually question the members, and analyzing the issue under an abuse of discretion standard, CAAF held the military judge did not err by declining to allow defense counsel to voir dire the members.

4. Preference for group voir dire. Belflower, 50 M.J. at 309. Military judge did not abuse his discretion in prohibiting individual voir dire by defense counsel of four members where defense did not ask any questions on group voir dire that would demonstrate the necessity for individual voir dire.

5. Military judge may restrict method of voir dire. Jefferson, 44 M.J. at 320. Military judge did not abuse discretion by: refusing to permit “double-teaming” by defense counsel during voir dire; limiting individual voir dire regarding burden of proof, inelastic attitude toward members, and credibility of witnesses when defense counsel admitted that initial questions in these areas were confusing. However, military judge did abuse discretion in not allowing defense to reopen voir dire to explore issue of potential bias of two members who stated they had friends or close relatives who were victims of crimes.

6. Military judge may require questions be submitted in writing and in advance. Dewrell, 55 M.J. at 136 (upholding military judge’s practice of requiring written voir dire questions from counsel 7 days before trial); United States v. Torres, 25 M.J. 555, 557 (1987) (A.C.M.R. 1987) (military judge may require counsel to submit questions in writing for approval, but “the denial of otherwise proper questions only because they had not been previously proffered is unduly restrictive and an abuse of discretion.”); R.C.M. 912(d) discussion (“The nature and scope of the examination of members is within the discretion of the military judge.”). However, the military judge may not deny otherwise proper questions solely because they were not previously submitted in writing.

7. Liberal voir dire and appellate review. In limiting voir dire, a military judge should consider that liberal voir dire can save cases on appeal. See Dowty, 60 M.J. at 165-66, 169 (affirming a “novel” panel selection process, in part, due to the military judge allowing defense counsel to conduct extensive voir dire of members concerning their selection as panel members); United States v. Simpson, 58 M.J. 368 (C.A.A.F. 2003) (in high profile case involving allegations of unlawful command influence and unfair pretrial publicity, court notes repeatedly that the military judge permitted counsel to conduct extensive individual voir dire prior to trial).

C. Military Judge Controls Voir Dire – Properly Disallowed Questions.

1. Jury nullification. In United States v. Smith, 27 M.J. 25, 28 (C.M.A. 1988), accused was charged with premeditated murder of his wife. Defense counsel wanted to ask members, “Are you aware that a conviction for premeditated murder carries a mandatory life sentence?” Military judge could preclude defense counsel from asking this question where “jury nullification” was motive. Court noted that voir dire should be used to obtain information for the intelligent exercise of challenges. A per se claim of relevance and materiality simply because a peremptory challenge is involved is not sufficient. The broad scope of challenges does not authorize unrestricted voir dire.

2. “Commitment” questions. In United States v. Nieto, 66 M.J. 146 (C.A.A.F. 2008), accused was charged with wrongful use based solely on a positive urinalysis result. During voir dire, trial counsel walked the panel through the Government’s case, asking specific questions about the reliability of urinalysis results. Trial counsel then received an affirmative response from each member to this confusing question: “Does any member believe that any technical error in the collection process, no matter how small[,] means that the urinalysis is per se invalid?” During individual voir dire, trial counsel aggressively attempted to rehabilitate members from this answer (which suggested the members would vote not guilty if evidence showed “any” technical error in the urinalysis collection process), using fact-intensive hypothetical questions related the accused’s urinalysis. On appeal, defense argued the trial counsel’s hypothetical questions improperly forced the members to commit to responses based on evidence not yet before them, denying a fair trial. Because there was no objection at trial, CAAF upheld the case under a plain error analysis. However, three judges wrote concurring opinions arguing that counsel cannot ask members to commit to findings or a sentence based on case-specific facts previewed in voir dire; the three judges even suggested that a military judge could commit plain error by not ending such questioning (presumably the questions would have to be particularly egregious to trigger a plain error finding). This case may have had a different result if the defense counsel had objected at trial.

3. Overly broad. In United States v. Toro, 34 M.J. 506, 511 (1991) (A.F.C.M.R. 1991), trial counsel improperly converted lengthy discourses on the history and mechanics of drug abuse, and on the misconduct of the accused and others, into voir dire questions by asking whether the members “could consider this information in their deliberations?” However, defense counsel did not object and any error was waived.

4. Sanctity of life. In United States v. Nixon, 30 M.J. 501, 504 (1989) (A.F.C.M.R. 1989), accused was charged with unpremeditated murder of his Filipino wife. Air Force court found there was no abuse of discretion when military judge allowed trial counsel to ask panel whether Asian societies place a lower premium on human life and to ask if any member opposes capital punishment.

5. Vague or “trick” questions. United States v. Smart, 21 M.J. 15, 20 (C.M.A. 1985) (“We are aware that the liberal voir dire of court members which often occurs may lure a member into replies which are not fully representative of his frame of mind.”).

a. United States v. Dorsey, 29 M.J. 761, 763 (1989) (A.C.M.R. 1989). In case for cocaine use, defense counsel asked, “Does anyone feel that the accused needs to explain why his urine tested positive for cocaine?” All members replied yes. MJ properly denied challenges to all panel members based on members’ responses to judge’s inquiries concerning prosecution’s burden of proof.

b. United States v. Rood, No. NMCCA 200700186 SPECIAL COURT-MARTIAL, 2008 CCA LEXIS 96 (N-M Ct. Crim. App. Mar. 20, 2008) (unpublished). Accused was charged with several offenses, including wrongful use of marijuana. During voir dire, civilian defense counsel asked the panel, “Does any member believe that a positive urinalysis alone proves a knowing use of a controlled substance?” The senior member of the panel, a Navy Captain, responded in the affirmative. The military judge then properly instructed the members that use of a controlled substance may be inferred to be wrongful, but that such an inference was not required. All members agreed that they could follow the military judge’s instructions. During individual voir dire, the senior member said, “My opinion is that you are personally responsible for everything that goes into your body.” He further elaborated:

CC: This belief that you are responsible for everything that goes into your body is a firmly held belief?

Member: I believe, yes.

The defense challenged the member for cause for implied bias. The military judge rejected the challenge and the appellate court affirmed. “The beliefs he articulated in response to the defense counsel’s questions were objectively reasonable for an average citizen not versed in the nuances of criminal law.” The member also “clearly evinced his willingness to follow the court’s instructions on the law regarding . . . a drug urinalysis case.” The court seemed bothered by the civilian defense counsel’s questioning, specifically framing a general voir dire question with a mild misstatement of law (whether a positive urinalysis proves wrongful use), arguably to trigger challenges for cause.

D. Military Judge Controls Voir Dire – Limits.

1. Insufficient questioning of members. In United States v. Richardson, 61 M.J. 113 (C.A.A.F. 2005), four members stated they had professional dealings with detailed trial counsel. Military judge briefly questioned all four members about the nature of these dealings, and all four responded that they would not give the government’s case more or less credence based on their experience with the trial counsel. Defense counsel then questioned the first three members but did not ask about their relationship with the trial counsel. For the fourth member, defense counsel asked several questions about the member’s dealings with trial counsel. Following that questioning, the defense counsel asked to “briefly recall” the other three members who had prior dealings with trial counsel. The military judge denied the request, noting that all members said they would not give the trial counsel “any special deference” and concluding, “I think there’s been enough that’s been brought out.” Id. at 116. CAAF held the military judge abused his discretion by refusing to reopen voir dire to question the members about their relationships with the trial counsel. CAAF reasoned that further inquiry was necessary to determine whether the relationships with trial counsel were beyond a cursory professional connection. Id. at 119.

2. Member with friends or relatives who are crime victims. In Jefferson, 44 M.J. at 321-322, military judge abused discretion by not allowing defense to reopen voir dire to explore potential bias of two members who said they had friends or close relatives who were victims of crimes. (Note, CAAF found no abuse of discretion in military judge refusing to permit “double-teaming” by defense counsel during voir dire or limiting individual voir dire regarding burden of proof, inelastic attitude toward members, and credibility of witnesses as defense counsel admitted those questions were confusing).

3. Urinalysis questions. United States v. Adams, 36 M.J. 1201, 1204 (1993) (N.M.C.M.R. 1993) (abuse of discretion not to allow defense counsel to voir dire prospective members about their previous experiences with or expertise in drug urinalysis program, and their beliefs about the reliability of the program).

4. Court members detailed to a SPCM or GCM may never be oriented or instructed on their immediate responsibilities in court-martial proceedings except by the military judge.  AR 27-10, para. 5–12, 20 November 2020.

E. Waiver of Voir Dire Issues.

1. Defense counsel should ensure the record clearly shows any voir dire issues that may be raised on appeal. Merely asking the military judge for individual voir dire without stating a legally-cognizable basis is likely waiver:

A number of options were available to the defense counsel: (1) Defense counsel could have asked more detailed questions during group voir dire regarding the issues now raised on appeal; (2) defense counsel could have asked the military judge to re-open group voir dire; or (3) if he was concerned about the limited value of group voir dire alone, defense counsel could have requested an Article 39(a) session to call the military judge’s attention to specific matters, thus making a record for appeal. In the absence of such actions, the sparse record we are presented in this case provides no basis for reversal.  Belflower, 50 M.J. at 309-310 (emphasis supplied).

2. United States v. Williams, 44 M.J. 482 (C.A.A.F. 1996). MJ did not unreasonably and arbitrarily restrict voir dire by denying a defense request for individual voir dire of member (SGM) who expressed difficulty with the proposition that no adverse inference could be drawn if accused failed to testify, and another member (MAJ) who disclosed that he had a few beers with one of the CID agents who would be a witness. Defense counsel did not conduct additional voir dire. The MJ granted the defense challenge for cause against the SGM. The defense peremptorily challenged the MAJ based on a theory that the denial of individual voir dire deprived the defense of an opportunity to sufficiently explore the basis for a challenge for cause. Court holds “[s]ince defense counsel decided to forego questioning, he cannot now complain that his ability to ask questions was unduly restricted.”

F. Denial of questions tested for abuse of discretion.

1. Rule.  Belflower, 50 M.J. at 309 (military judge did not abuse his discretion in prohibiting individual voir dire by defense counsel of four members where defense did not ask any questions on group voir dire that would demonstrate the necessity for individual voir dire).

2. Generally, military judge will only abuse discretion if no questions are permitted into valid area for potential challenge. United States v. McDonald, 57 M.J. 747, 749-750 (N-M Ct. Crim. App. 2002), rev’d on other grounds, 59 M.J. 426 (C.A.A.F. 2004). Military judge required written questions beforehand, and asked several government questions (some of which the MJ revised) over defense objection. Questions involved whether members ever discussed with their children what they should do if someone propositions them in an inappropriate way, and how the members thought a child would do if an adult solicited them for sex. Citing the Belflower standard (that “the appellate courts will not find an abuse of discretion when counsel is given an opportunity to explore possible bias or partiality”), the court found no abuse of discretion: “Whether it is the Government or the accused, we believe that the aforementioned rules governing the content of voir dire apply equally. In other words, the TC had as much right to obtain information for the intelligent exercise of challenges as the DC.”

VI. Challenges for Cause – Generally

A. R.C.M. 912. Challenge of selection of members; examination and challenges of members.

(f) Challenges and removal for cause.

(1) Grounds. A member shall be excused for cause whenever it appears that the member:

(A) Is not competent to serve as a member under Article 25(a), (b), or (c);

(B) Has not been properly detailed as a member of the court-martial;

(C) Is an accuser as to any offense charged;

(D) Will be a witness in the court-martial;

(E) Has acted as counsel for any party as to any offense charged;

(F) Has been an investigating officer as to any offense charged;

(G) Has acted in the same case as convening authority or as the legal officer or staff judge advocate to the convening authority;

(H) Will act in the same case as reviewing authority or as the legal officer or staff judge advocate to the reviewing authority;

(I) Has forwarded charges in the case with a personal recommendation as to disposition;

(J) Upon a rehearing or new or other trial of the case, was a member of the court-martial which heard the case before;

(K) Is junior to the accused in grade or rank, unless it is established that this could not be avoided;

(L) Is in arrest or confinement;

(M) Has informed or expressed a definite opinion as to the guilt or innocence of the accused as to any offense charged;

(N) Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality."

B. Each side has an unlimited number of challenges for cause. See Article 41(a)(1), UCMJ; R.C.M. 912(f).

1. Nondiscretionary bases. R.C.M. 912(f)(1)(A)-(M) list rarely-used scenarios that require a panel member be excused, to include a member who is “in arrest or confinement,” “an accuser to any offense charged,” or “a witness in the court-martial.”

2. Discretionary bases. R.C.M. 912(f)(1)(N) allows a member to be challenged for actual bias and implied bias.

C. Actual Bias & Implied Bias. Actual and implied bias are based on R.C.M. 912(f)(1)(N), which provides that a member should be excused if serving would create a “substantial doubt as to [the] legality, fairness, and impartiality” of the proceedings. Actual and implied bias each have a separate test (set forth below), though a challenge for cause often invokes both principles. United States v. Armstrong, 54 M.J. 51, 53-54 (C.A.A.F. 2000).

D. Rationale For Actual And Implied Bias Doctrines. An accused has "the right to an impartial and unbiased panel." United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) “[T]he text of R.C.M. 912 is not framed in the absolutes of actual bias, but rather addresses the appearance of fairness as well, dictating the avoidance of situations where there will be substantial doubt as to fairness or impartiality. Thus, implied bias picks up where actual bias drops off because the facts are unknown, unreachable, or principles of fairness nonetheless warrant excusal.” Bragg, 66 M.J. at 327.

E. Liberal Grant Mandate. Military judges are charged to liberally grant challenges for cause from the defense. United States v. James, 61 M.J. 132 (C.A.A.F. 2005). The liberal grant mandate does not apply to Government challenges.

1. Rationale. The convening authority selects the panel members and can be said to have an unlimited number of peremptory challenges. Per James, “[g]iven the convening authority’s broad power to appoint [panel members], we find no basis for application of the ‘liberal grant’ policy when a military judge is ruling on the Government’s challenges for cause.” Id. at 139. Additionally, the court noted the SJA may excuse one third of the panel members under R.C.M. 505(c)(1)(B). By contrast, the accused “has only one peremptory challenge at his or her disposal.” James, 61 M.J. at 139

2. Long history. United States v. Reynolds, 23 M.J. 292, 294 (C.M.A. 1987) (“We again take the opportunity to encourage liberality in ruling on challenges for cause. Failure to heed this exhortation only results in the creation of needless appellate issues.”); United States v. Moyar, 24 M.J. 635, 638, 639 (1987) (A.C.M.R. 1987) (“The issue of denial of challenges for cause remains one of the most sensitive in current military practice. . . . Military law mandates military judges to liberally pass on challenges. Notwithstanding this mandate . . . some trial judges have at best only grudgingly granted challenges for cause and others frustrate the rule with pro forma questions to rehabilitate challenged members.”).

 

3. Practice Point. Where a military judge declares on the record that he or she is considering the liberal grant mandate, appellate courts will afford the military judge greater deference. United States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007).

F. A military judge may remove a member for cause sua sponte, but has no duty to do so. United States v. Mayo, No. ARMY 20140901, 2017 CCA LEXIS 239, at *6 (A. Ct. Crim. App. Apr. 7, 2017) (citing United States v. McFadden, 74 M.J. 87 (C.A.A.F. 2015)).

 

G. Rehabilitating Members. Once a member gives a response that shows a potential grounds for challenge, counsel or the military judge may ask questions of that member to rehabilitate him or her. See United States v. Napolitano, 53 M.J. 162 (C.A.A.F. 2000) (member indicated on questionnaire disapproval of civilian defense counsel’s behavior in another case; judge did not abuse discretion in denying challenge for cause because member retracted opinion and said he was not biased against the counsel). Counsel should consider these questions when attempting to rehabilitate a member:

1.  Can you follow the judge’s instructions regarding the law?

2.  Will you base your decision only on the evidence presented at trial, rather than your own personal experience?

3.  Have you made your mind up right now concerning the type of punishment the accused should receive if convicted?

4.  Can you give this accused a full, fair, and impartial hearing?     

Note, these standard questions may not be sufficient, especially if counsel only gets “naked disclaimers” from the members. Counsel should tailor questions to the facts of the case and get clear, unequivocal answers. But see United States v. Townsend, 65 M.J. 460, 465 (C.A.A.F. 2008) (“[T]here is a point at which numerous efforts to rehabilitate a member will themselves create a perception of unfairness in the mind of a reasonable observer.”).

VII. Challenges for Cause – Actual Bias

A. Standard. United States v. Elfayoumi, 66 M.J. 354 (C.A.A.F. 2008). Challenge for cause based on implied bias is reviewed on an objective standard, through the eyes of the public. “Implied bias exists "when most people in the same position would be prejudiced.” United States v. Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996). In applying implied bias, the focus is on “the perception or appearance of fairness of the military justice system.” United States v. New, 55 M.J. 95, 100 (C.A.A.F. 2001). Accordingly, “issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo.” United States v. Strand, 59 M.J. 455, 459 (C.A.A.F. 2004). In Elfayoumi, the court provided this summary:

"Implied bias exists when most people in the same position as the court member would be prejudiced. To test whether there is substantial doubt about the fairness of the trial, we evaluate implied bias objectively, through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system. This review is based on the “totality of the circumstances.” Although we review issues of implied bias for an abuse of discretion, because we apply an objective test, we apply a less deferential standard than we would when reviewing a claim of actual bias."

Id. at 356 (citations omitted).

B. In General.

1. Common issues. Implied bias can be expansively applied, as the test considers the public’s perception of the military justice system. Several cases have raised implied bias based on (1) member’s knowledge of the case, issues, or witnesses; (2) member’s rating chain relationship with other members; (3) member being a victim of a similar crime or knowing a victim of a similar crime; (4) member’s predisposition to punishment; and (5) potential unlawful command influence. Each of these bases is discussed below:

2. Example. United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007). Accused was charged with rape and indecent assault. During voir dire, the senior panel member was asked whether his judgment would be affected because he had two teenage daughters. He responded, “[I]f I believed beyond a reasonable doubt that an individual were guilty of raping a young female, I would be merciless within the limit of the law.” Trial counsel attempted to rehabilitate the member, who said, “I believe I could” when asked if he could consider the full range of permissible punishments. While the court found no actual bias, the military judge erred and should have granted the challenge for cause based on implied bias and the liberal grant mandate. CAAF reasoned that the answers he gave, in response to the voir dire questions and rehabilitation questions, “create[d] the perception that if [he], the senior member of the panel, were convinced of the Appellant’s guilt he would favor the harshest sentence available, without regard to the other evidence.” Id. at 278.

C. Grounds for Challenge– Knowledge of Case, Issues, Witnesses.

1. Generally. United States v. Briggs, 64 M.J. 285 (C.A.A.F. 2007). Air Force technical sergeant was tried for larceny of survival vests from the aircraft he was responsible for maintaining and re-selling them. Military judge denied challenge for cause against CPT H, the wife of the appellant’s commander; she had learned from her husband that “vests went missing.” In finding that the member lacked actual bias, the military judge did not address the liberal grant mandate or implied bias. On appeal, using the implied bias theory, CAAF found the military judge erred in denying the challenge for cause. The court cited a number of reasons why this challenge should have been granted, including: the safety of the member’s husband’s unit was placed at risk by the accused, the husband’s performance evaluation could have been affected by the accused’s criminal misconduct, and the member’s husband was responsible for the initial inquiry into the misconduct and recommendation as to disposition. See also United States v. Minyard, 46 M.J. 229 (C.A.A.F. 1997) (military judge should have granted challenge for cause against member whose husband investigated case against accused, despite member’s claim that she knew little about the case, that she and her husband did not discuss cases); see also United States v. Castillo, 74 M.J. 39, 40 (C.A.A.F. 2015) (affirming conviction and discussing several grounds for challenge).

2. Knowledge of the case. United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999). In a high profile case, some knowledge of the facts of the offense or an unfavorable inclination toward an offense is not per se disqualifying. The critical issue is whether a member is able to put aside outside knowledge, association, or inclination, and decide the case fairly and impartially on its merits. Accused was convicted of various offenses arising out of issues related to Operation Uphold Democracy in Haiti. The defense challenged the entire panel based on the following: an acquittal would damage the reputation of the members individually, the general court-martial convening authority, and the 10th Mountain Division; several members knew key witnesses against the accused and would give their testimony undue weight; that members were exposed to and would be affected by pretrial publicity; and members evinced an inelastic attitude about a possible sentence in the case. The court held that there was no actual bias; members are not automatically disqualified based on professional relationships with other members or with witnesses; and some knowledge of the facts or an unfavorable inclination toward and offense is not per se disqualifying.

a. United States v. Hollings, 65 M.J. 116 (C.A.A.F. 2007). Military judge did not abuse his discretion in denying this challenge for cause for a member that the defense alleged met the definition of legal officer under R.C.M. 912(f)(1)(G). Under the facts elicited at trial, the member did not meet the definition of “legal officer.” The accused also argued on appeal that the challenge should have been granted under an implied bias theory because he was a “career legal officer, he was familiar with [the accused’s] case as a result of his duties, and at least some of those duties were legal in nature.” The member’s responses during voir dire did not reveal any actual or implied bias.

b. United States v. Baum, 30 M.J. 626 (1990) (N.M.C.M.R. 1990). Military judge improperly denied two causal challenges: first member was the sergeant major of alleged co-conspirator who had testified at separate Article 32, was interviewed by chief prosecutor, and had voluntarily attended accused’s Article 32 investigation; second member was colonel who headed depot inspector’s office, had official interest in investigation, and had discussed cases with chief investigator and government witness.

c. Membership on a SARB. United States v. Commisso, 76 M.J. 315 (C.A.A.F. 2017) COL sitting on panel stated after trial he “might have felt a little bit biased sitting on a court-martial panel already having some knowledge of the case.” The defense moved for mistrial, the trial judge denied the motion. On appeal, CAAF found the the military judge abused his discretion and stated, “Nevertheless, the law is well settled that failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause.” Id. at 322 (citations omitted); but see, United States v. Elie, No. ARMY 20160112, 2018 CCA LEXIS 17, at *9 (A. Ct. Crim. App. Jan. 16, 2018) (“this court is unpersuaded by appellant's argument that challenges for cause should be granted collectively against a group of members because four of eight panel members served on the SARB.”)

3. Member’s “possible” knowledge of case may require excusal. Bragg, 66 M.J. at 327. Accused was a Marine recruiter charged with rape and other offenses involving two female high school students. Member stated during voir dire that he learned information about the case before trial. While he could not recall how he obtained this information, he knew the “general identity” of the victim, the general nature of the offense, and the investigatory measures taken by law enforcement. The member had been the deputy chief of staff for recruiting and, in that capacity, he normally read relief for cause (RFC) packets of recruiters. The member could not recall if he had reviewed the accused’s RFC packet, though he said that if he had, he “probably would have” recommended relief. The member said he could be impartial despite his prior knowledge of the case. CAAF reversed: “In making judgments regarding implied bias, this Court looks at the totality of the factual circumstances.” In this case, the member may have recommended adverse action against the accused, so he should have been excused.

4. Member knows about pretrial agreement. United States v. Jobson, 31 M.J. 117 (C.M.A. 1990). Knowledge of pretrial agreement does not per se disqualify the court member. Whether the member is qualified to sit is a decision within the discretion of the military judge.

5. Member knows about accused’s sanity report. United States v. Dinatale, 44 M.J. 325 (C.A.A.F. 1996). In an indecent acts on minors case, military judge did not clearly abuse his discretion by denying a challenge for cause against a member (Chief of Hospital Services at the local military hospital) where voir dire supported the conclusion that the member’s review of sanity report was limited to reading the psychologist’s capsule findings, member did not recall seeing accused’s report, member stated that she could decide the case based on the evidence and MJ instructions, and mental state of accused was not an issue at trial.

6. Member knows trial counsel. United States v. Peters, 74 M.J. 31, 35 (C.A.A.F. 2015) Professional relationships are not a per se basis for challenge. “As a result, there is no per se disqualification in circumstances where a member of a panel knows or has worked with trial counsel or defense counsel.” (citing United States v. Hamilton, 41 M.J. 22, 25 (C.M.A. 1994); but see United States v. Richardson, 61 M.J. 113, 119 (C.A.A.F. 2005) (“We recognize that in military practice, the qualitative nature of the relationships between trial attorneys and officers in the commands those attorneys advise will cover a wide range of experiences. Some officers, including commanders, and the attorneys will establish a close personal and professional bond based on shared experience, for example, combat service, or regular garrison contact. In other contexts, the contact may be singular or passing; formal and professional, but not indicative of special deference or bonding. Moreover, in deployed circumstances, one lawyer may have professional contact with many, if not all, of the senior members of a command who might serve as panel members within that command. Thus, we decline to adopt a per se ground for challenge, while at the same time emphasizing the importance of thorough voir dire in such circumstances.”)7. Member is a potential witness. United States v. Perez, 36 M.J. 1198 (1993) (N.M.C.M.R. 1993). Three officer members stated during voir dire that they observed “stacking incident” (assault on a warrant officer). In reversing, court held potential witnesses in case should have been excused for cause.

8. Member’s outside investigation. United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). Accused, who worked in the comptroller’s disbursing office, was convicted of rape at a contested court-martial by members. LTC F, the eventual panel president, was the deputy comptroller and had pretrial knowledge of the accused and co-accused’s cases through his own investigative efforts and newspaper articles. MJ granted seven of eight defense challenges for cause but denied the challenge against LTC F without making findings. CAAF held that LTC F’s “inquiry went beyond a routine passing of information to a superior—. . . his inquiries were so through thorough that he subjectively believed he knew all there was to know—that he had the ‘complete picture.’” Under the implied bias standard, an objective observer could reasonably question LTC F’s impartiality and that the MJ erred in denying defense’s challenge for cause. Findings reversed. Cf. United States v. Nigro, 28 M.J. 415 (C.M.A. 1989) (in a bad check case, military judge properly denied challenge for cause against member who called credit union to ask about banking procedures; member’s responses to inquiries were clear and unequivocal that he could remain impartial and follow judge’s instructions).

9. Experience with key trial issues. Daulton, 45 M.J. at 217-8. In a child sexual abuse case, military judge erred in failing to grant a defense challenge for cause against a member who stated that her sister had been abused by her grandfather, and was shocked when she first heard of her sister’s allegations, “but had gotten over it.” The member’s responses to the MJ’s rehabilitative questions regarding her ability to separate her sister’s abuse from the evidence in the trial were not “resounding.”

10. Member with position and experience. United States v. Lattimore, 1996 WL 595211 (A.F. Ct. Crim. App. 1996) (unpub.). In case involving stealing and use of Demerol, no abuse of discretion to deny challenge for cause against O-6-member who was a group commander and former squadron commander; had preferred charges in three or four courts-martial; recently forwarded charges of drug use; sat through portion of expert forensic toxicologist in unrelated drug case; and who indicated that, although not predisposed to give punitive discharge, some form of punishment was appropriate if accused was found guilty, but would consider sentence of no punishment. No per se exclusion for commanders and prior commanders who have preferred drug charges.

11. Member’s in command who must interact with victims of sexual assault. United States v. Cashin, No. ARMY 20200050, 2022 CCA LEXIS 194, at *23-24 (A. Ct. Crim. App. Mar. 28, 2022) Panel member was a battalion commander who felt “tension” between the Army’s mission to eradicate sexual assault and due process. Panel member also felt it would be a “burden” to return a Soldier accused of sexual assault back to the unit after an acquittal. Panel member stated he would follow instructions and “wall off” the Army’s mission to combat sexual assault. Held, no actual bias, but there was implied bias. “Prospective panel members who cannot table their obligation to support the Army's strategic objectives in favor of their controlling duty to be fair and impartial cannot serve, because they are actually biased. Yet even when a member convinces a military judge that they can, as a matter of fact, fairly and impartially decide the case, it is a separate question whether they should, as a matter of law—especially where the public perceives obedience to orders and commands as a defining feature of military service. As a result, when a close call materializes regarding a panel member's suitability, defense causal challenges must be liberally granted.”

12. Misunderstanding of the law. United States v. Hernandez, No. ARMY 20200653, 2022 CCA LEXIS 529, at *16 (A. Ct. Crim. App. Aug. 29, 2022) Panel member believed consent could only be given verbally. ACCA found that the panel member “had a strong misunderstanding of the law surrounding consent, which was left uncorrected during both the rehabilitation attempt by the military judge during voir dire and the court's final panel instructions” and found implied bias.

13. Knowledge of witnesses.

a. United States v. Ai, 49 M.J. 1 (C.A.A.F. 1998). Military judge did not abuse his discretion in denying a challenge for cause against a member who was a friend and former supervisor of a key government witness. In a graft case, during voir dire, an officer member revealed that a key government witness had previously worked for him as a food manager for one year three years ago. The member indicated, during group and individual voir dire, that the relationship would not affect him as a member and he would follow all MJ instructions. CAAF recognized that while R.C.M. 912(f)(1)(N) is broad enough to permit a challenge for cause against a member on the basis of favoring witnesses for the prosecution, there was no “historical basis” in the record to support the challenge. The work relationship was limited in duration, negating any inference of predisposition.

b. United States v. Napoleon, 46 M.J. 279 (C.A.A.F. 1997) (holding that under both actual and implied bias standard, military judge properly denied challenge for cause against member who had official contacts with special agent-witness who was “very credible because of the job he has” and had knowledge of case through a staff meeting).

c. United States v. Arnold, 26 M.J. 965 (1988) (A.C.M.R. 1988). Member who had seen witness in another trial and formed opinion as to credibility should have been excused. However, the mere fact that a witness had appeared before the member in another case is not grounds by itself to grant a challenge; if so, this would virtually prohibit the repeated use in different trials of witnesses such as police officers and commanders.

d. United States v. Covitz, No. ACM 40193, 2022 CCA LEXIS 563, at *31 (A.F. Ct. Crim. App. Sep. 30, 2022) (implied bias found where member had a “high opinion” of a “key Government witness with whom he had regular conversations about personal and unofficial matters, a Government witness who was a paramour of the victim in the case.”) Separately, the AFCCA found another implied bias challenge for a panel member who had lived in the house of the accused. Id. at *39.

e. Knowledge of the accused. United States v. Frank, No. ACM 38854 (rem), 2018 CCA LEXIS 176, at *9 (A.F. Ct. Crim. App. Apr. 5, 2018) Panel member was a victim advocate and also had encountered the accused at work. Panel member did not disclose her knowledge of the accused during voir dire. However, the panel member did not recall her interactions with the accused. Held, there was no actual bias, implied bias based on being a victim advocate, and no implied bias based on her prior interactions with the accused. Id. at *15.

f Practice point. Trial and defense counsel should read a list of anticipated witnesses to the members during voir dire.

D. Grounds for Challenge – Rating Chain Relationship. If one member is in the rating chain of one or more other members, that may be a basis for challenge. It is not a per se basis for challenge. United States v. Murphy, 26 M.J. 454 (C.M.A. 1988) (rating chain relationship is not an automatic disqualification; inquiry of both parties is necessary).

1. Rating chain as a voting block.

a. United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), recon. denied,  United States v. Wiesen, 57 M.J. 48 (C.A.A.F. 2002). During voir dire, COL Williams, a brigade commander and the senior member, identified six of the other nine members as his subordinates. The defense argued implied bias and attempted to challenge COL Williams. The military judge denied this causal challenge. The defense then used their peremptory challenge to remove COL Williams, but preserved the issue for appeal by stating, “but for the military judge’s denial of [our] challenge for cause against COL Williams, [we] would have peremptorily challenged [another member].” The court concluded, “Where a panel member has a supervisory position over six of the other members, and the resulting seven members make up the two-thirds majority sufficient to convict, we are placing an intolerable strain on public perception of the military justice system.” CAAF held “the military judge abused his discretion when he denied the challenge for cause against COL Williams.” Finding prejudice, findings and sentence were set aside. See also, United States v. Kunishige, 79 M.J. 693, 713 (N-M Ct. Crim. App. 2019).

b. But see United States v. Bagstad, 67 M.J. 599 (N-M. Ct. Crim. App. 2008), aff’d on other grounds, 68 M.J. 177 (C.A.A.F. 2010) (affirming based on defense counsel waiver without addressing issue before the N-MCCA). In a case similar to Wiesen, court upheld military judge’s denial of challenge against senior member who rated another panel member, even though the rater and ratee constituted the two-thirds necessary to convict on a three-member panel. In questionable reasoning, N-MCCA held the case had different “contextual facts” from Wiesen, as the senior member was a Capt (O-3) and the junior member was a GySgt (E-7); the court added that the NCO was three years old older than the officer and had served seven years longer. Further, the third panel member was a 1stSgt (E-8). The court noted that the “camaraderie between, and respect and deference for, senior NCO’s, is significant.” In this context, N-MCCA concluded the presence of two senior NCOs serving on a panel with a company grade officer weakens “any reasonable perception” that the rating chain relationship could have improperly influenced deliberation; hence, an informed public would not question the fairness of this proceeding.

2. Counsel must develop record. United States v. Blocker, 33 M.J. 349 (C.M.A. 1991) (noting obligation is on the party making the challenge to inquire into any rating chain relationships; military judge has no sua sponte duty to conduct such inquiry); Murphy, 26 M.J. 454 (rating chain relationship is not an automatic disqualification; careful inquiry of both parties is necessary).

3. Military judge may abuse discretion if questions about rating chain are not allowed. United States v. Garcia, 26 M.J. 844 (1988) (A.C.M.R. 1988) (rating relationship merits inquiry and appropriate action based on members’ responses). Cf. United States v. DeNoyer, 44 M.J. 619 (A. Ct. Crim. App. 1996). Identification of supervisory or rating chain relationship not enough to support individual member questioning. After defense asked panel in excess of 25 questions, some repetitious, in various areas, and then identified possible rating or supervisory relationships among five of the nine members, MJ denied defense request for individual voir dire. No abuse of discretion by denying defense request for individual voir dire. However, ACCA cautioned that granting defense requests would have eliminated appellate issues and enhanced perception of fairness.

E. Grounds for Challenge – Victim (or Indirect Victim) of Similar Crime.

1. Considerations in victim analysis:

a. Who was victim? Panel member or a family member?

b. How similar was the accused’s crime to the one the victim was involved in?

c. Was victim’s crime unsolved?

d. Traumatic? How many times a victim?

e. Does the member give clear, reassuring, unequivocal answers about his impartiality.

2. Victim of sexual assault. United States v. Castillo, 74 M.J. 39, 42 (C.A.A.F. 2015). CAAF held “[t]here is no per se rule that a panel member must be excused because he or she has been the victim of a similar crime.” Absent actual bias, CAAF recognized that this situation may present an issued of implied bias. CAAF held the military judge did not abuse his discretion in allowing the panel member who was previously a victim of sexual assault to stay on the panel.

3. Close relationship with victim of similar crime. Terry, 64 M.J. 295. Military judge erred in not granting challenge for cause under the implied bias theory and liberal grant mandate. In rape trial, member’s girlfriend (whom he intended to marry) was raped, became pregnant, terminated their relationship, and named the child after him. Although six years had passed, “most members in [the member’s position] would have difficulty sitting on a rape trial . . . . Further, an objective observer might well have doubts about the fairness of Appellant’s court-martial panel.” See also United States v. Rodriguez, No. ARMY 20180138, 2019 CCA LEXIS 387, at *22 (A. Ct. Crim. App. Oct. 1, 2019); United States v. Bressler, No. ACM 38660, 2016 CCA LEXIS 746, at *14 (A.F. Ct. Crim. App. Dec. 16, 2016)

4. Victim Advocates. United States v. Berrian, No. 201900310, 2021 CCA LEXIS 116, at *4 (N-M Ct. Crim. App. Mar. 22, 2021) (no implied bias where panel member served as a victim advocate and received training).

5. Relative who died because of pre-natal drug use. United States v. Miles, 58 M.J. 192 (C.A.A.F. 2003). Military judge abused his discretion by failing to grant challenge for cause based on implied bias where, during voir dire in guilty plea case involving wrongful use of cocaine, member revealed his ten-year-old nephew died as a result of mother’s pre-natal use of cocaine. Member described tragedy in article in base newspaper scheduled for publication shortly after court-martial. Trial counsel commented that event “evidently” was “a very traumatic experience” for the member. “We conclude that asking [the member] to set aside his memories of his nephew’s death and to impartially sentence Appellant for illegal drug use was ‘asking too much’ of him and the system.” Sentence set aside.

6. Member’s wife a victim of domestic violence. United States v. White, United States v. White, No. ARMY 20011132, 2003 CCA LEXIS 317 (A. Ct. Crim. App. Dec. 8, 2003). Appellant charged with attempted murder of wife; convicted of assault with intent to inflict grievous bodily harm and other offenses. Military judge abused discretion by denying challenge for cause of member whose wife was victim of domestic abuse by her first husband. Individual voir dire revealed wife suffered a broken neck from abuse; member stated that “I’ve told him, simply, that, ‘If I ever see you and you look like you’re going to raise a hand for her, I’m gonna kill you and then we’ll sort it out later.’ That’s kind of the way I feel about it.” While court found no abuse of discretion as to actual bias, the court found error as to implied bias. Notably, court gave MJ less discretion on implied bias because he did not address that issue on the record. “On these facts, an objective observer would likely question the fairness of the military justice system.” Findings set aside. But see, United States v. Allen, No. ARMY 20200039, 2021 CCA LEXIS 353, at *9 (A. Ct. Crim. App. July 19, 2021) (no implied bias where spouse was a victim of child molestation).

7. Members in robbery case were victims of robbery/burglary. Member in a robbery case had been a robbery victim seven times. Another member, a two-time victim of burglary, indicated “it’s hard to say” if those prior incidents would influence his deliberations; it “might trigger something from the past, and again it may not” Smart, 21 M.J. 15. Perfunctory claims of impartiality are not enough; challenge should have been granted to keep outcome “free from doubt.” But see United States v. Fulton, 44 M.J. 100 (C.A.A.F. 1996) (member on robbery and larceny case not disqualified even though prior victim of burglary).

8. Panel was robbed during court-martial for larceny. United States v. Lavender, 46 M.J. 485 (C.A.A.F. 1997). The implied bias doctrine will not operate to entitle an accused on trial for larceny to have the entire panel removed for cause after two members had money stolen from their unattended purses in deliberation room. The implied bias doctrine is only applied in rare cases. See United States v. Godinez, 784 F. Supp. 522 (N.D. Ill.), aff’d, 975 F.2d 316 (7th Cir. 1992) (holding due process does not require a new trial every time a juror has been placed in a potentially compromising situation; doctrine of implied bias appropriately applied to defendant convicted of murder during a burglary where judge denied challenges for cause against members who changed vote from “not guilty” to “guilty” after becoming victims of burglary during overnight recess in sequestered hotel).

9. Minor victim of gun violence. United States v. Henry, 37 M.J. 968 (1993) (A.C.M.R. 1993). E-8 member in aggravated assault case involving shooting at NCO Club had been caught in crossfire during similar incident 15 years earlier in off-post bar fight. Member indicated that he could remain fair and impartial. Conviction affirmed.

10. Victim of dissimilar crime not disqualified. United States v. Smith, 25 M.J. 785 (1988) (A.C.M.R. 1988). Member in a rape case had been a larceny victim. Challenge denied; any recent crime victim is not automatically disqualified.

11. Member duty to disclose. United States v. Mack, 36 M.J. 851 (1993) (A.C.M.R. 1993). Officer member in an assault case failed to disclose that he had been held at gunpoint, tied up, and threatened with death during armed robbery thirty years earlier. Member indicated that he had “forgotten about it.” Returned for DuBay hearing to determine (1) was there a failure to honestly answer a material question?; (2) would the correct (honest) response provide a valid basis for challenge for cause? Case affirmed after DuBay hearing.

12. The outer limits. Victims of similar crimes have been allowed to sit as members, provided they unequivocally evince an ability to be open-minded and consider the full range of permissible punishments.

a. United States v. Basnight, 29 M.J. 838 (1989) (A.C.M.R. 1989). Member was victim of three larcenies and his parents were victims of two larcenies. Denial of challenge for cause proper in light of member’s candor and willingness to consider complete range of punishments.

b. United States v. Reichardt, 28 M.J. 113 (C.M.A. 1989). Larceny of ATM card and money; member’s wife had been victim of a similar crime. Not error to deny challenge based on judge’s inquiry, unequivocal responses, and judge’s findings.

c. But see United States v. Campbell, 26 M.J. 970 (1988) (A.C.M.R. 1988). Challenge should have been granted based on equivocal responses. Member “waffled” in response to questions about his impartiality. Member “[w]ould try to be open-minded, somewhat objective, but ‘not sympathetic to thieves.’” See also, United States v. Kelley, 40 M.J. 515, 518 (A.C.M.R. 1994) (member stated he “would like to think” he would be impartial was too equivocal of a statement). F. Grounds for Challenge – Inelastic Predisposition to Sentence. A member is not automatically disqualified merely for admitting an unfavorable inclination or predisposition toward a particular offense.

1. Draconian view of punishment. United States v. Schlamer, 52 M.J. 80 (C.A.A.F. 1999). Member disclosed her severe notions of punishment (“rape = castration;” “you take a life, you owe a life”). Nevertheless, she was adamant that she had not made up her mind in accused’s case, that she believed in the presumption of innocence, and that she would follow the judge’s instructions. CAAF held the military judge did not abuse his discretion in denying the challenge. Similarly, the judge’s grant of a Government challenge against a member who had received an Article 15 and stated he would be “uncomfortable” judging the accused was within the judge’s discretion and comported with the “liberal grant” mandate.

2. Would you consider no punishment as a sentencing option? United States v. Martinez, 67 M.J. 59 (C.A.A.F. 2008) (per curiam). Accused pled guilty to a single specification of wrongful use of methamphetamines and elected sentencing before members. During general voir dire, member was asked if he could consider “no punishment” during sentencing; he said “no,” adding, “He obviously knew it was wrong and came forward with his guilt, and there has to be punishment for it.” During follow-up questioning, member said he could consider the full range of sentencing options, to include no punishment, however: “[W]e’ll weigh it from no punishment to the max. I can do that, but something has to be done.” CAAF unanimously reversed, reasoning that the member should have been excused for implied bias, as a reasonable person would question the fairness of the proceedings because the member stated “something has to be done” when asked about sentencing. Case seems inconsistent with Rolle, discussed infra.

a. But cf. United States v. Rolle, 53 M.J. 187 (C.A.A.F. 2000). Accused, a Staff Sergeant, pled guilty to use of cocaine. Much of voir dire focused on whether the members could seriously consider the option of no punishment or whether they felt a particular punishment (like a punitive discharge) was appropriate. One member, CSM L, stated “I wouldn’t” let the accused stay in the military, and “I am inclined to believe that probably there is some punishment in order there . . . I very seriously doubt that he will go without punishment.” CSM L conversely noted there was a difference between a discharge and an administrative elimination from the Army. Another member, SFC W, stated, “I can’t [give a sentence of no punishment] . . . because basically it seems like facts have been presented to me because he evidentially [sic] said that he was guilty.” Military judge denied the challenges for cause against CSM L and SFC W; CAAF noted that “[p]redisposition to impose some punishment is not automatically disqualifying.” (citing Jefferson, 44 M.J. at 319; United States v. Tippit, 9 M.J. 106, 107 (C.M.A. 1980)). “[T]he test is whether the member’s attitude is of such a nature that he will not yield to the evidence presented and the judge’s instructions.”

 b. United States v. McLaren, 38 M.J. 112 (C.M.A. 1993). Despite member’s initial responses that he could not consider “no punishment” as an option where accused charged with rape, sodomy, and indecent acts, member’s later responses showed he would listen to the evidence and follow the judge’s instructions. Member’s responses to defense counsel’s “artful, sometimes ambiguous" questioning” does not necessarily require that a challenge for cause be granted. The majority opinion included this conclusion: “I would have substantial misgivings about holding that a military judge abused his discretion by refusing to excuse a court member who could not in good conscience consider a sentence to no punishment in a case where all parties agree that a sentence to no punishment would have been well outside the range of reasonable and even remotely probable sentences.” Id. at 119 n.*.

c. United States v. Czekala, 38 M.J. 566 (A.C.M.R. 1993), aff’d, 42 M.J. 168 (C.A.A.F. 1995). Member indicated an officer convicted of conduct unbecoming should not be permitted to remain on active duty. Member stated she would follow guidance of military judge. Denial of challenge for cause not abuse of discretion.

d. United States v. Greaves, 48 M.J. 885 (A.F. Ct. Crim. App. 1998). Accused pled guilty to wrongful use of cocaine. Military judge did not abuse his discretion by failing to grant a challenge for cause against member who stated during voir dire that, while he would keep an open mind, he thought that a sentence of no punishment would be an unlikely outcome, adding that in “99.9 percent of the cases, some punishment would be in order.” Id. at 887. Court held the member did not express an inflexible attitude toward sentencing; he merely stated “what should be patently obvious to all; while a sentence to no punishment is an option which should be considered, it is not often appropriate.” Greaves, 48 M.J. at 887

3. Member’s strong predisposition to punitive discharge may require excusal. United States v. Giles, 48 M.J. 60 (C.A.A.F. 1998). Military judge “clearly” abused his discretion by failing to grant a challenge for cause against a member who demonstrated actual bias by his inelastic attitude toward sentencing in a case involving attempted possession of LSD with intent to distribute and attempted distribution of LSD. While member indicated that he could consider all evidence and circumstances, he responded to defense questions that anyone distributing drugs should be punitively discharged and that he had not heard of or experienced any circumstance where a punitive discharge would not be appropriate. These responses disqualified member under R.C.M. 912(f)(1)(N). But see Rolle, 53 M.J. 187, a later case with similar facts but an opposite outcome.

4. Suggested rehabilitation questions for sentencing predisposition:

a. Are you aware that punishment can range from no punishment, to the slight punishment of a letter of reprimand, all the way to a discharge and confinement?

b. Do you understand that you should not decide on a punishment until you hear all of the evidence?

c. Can you follow the judge’s instructions regarding the law?                    

d. Will you listen to all of the evidence admitted at trial, before deciding a sentence?

e. Can you give this accused a full, fair, and impartial hearing.

G. Grounds for Challenge – Unlawful Command Influence.

1. Courts maintain that it is in the “rare case” where implied bias will be found. United States v. Youngblood, 47 M.J. 338 (C.A.A.F. 1997). Application of the implied bias standard is appropriate to determine whether a military judge abused his discretion in denying challenges for cause against court members based on counsel argument that members were affected by unlawful command influence. Prior to court-martial, each member attended staff meeting where convening authority and SJA gave a presentation on standards, command responsibility, and discipline; during presentation, SJA and convening authority expressed dissatisfaction with a previous commander’s disposition of an offense.

2. United States v. Stoneman, 57 M.J. 35 (C.A.A.F. 2002). Six of nine members either received email from brigade commander threatening to “declare war on all leaders not leading by example,” to “CRUSH all leaders in this Brigade who don’t lead by example” or attended a “leaders conference” where the same issues were discussed. MJ denied defense challenges for cause based on implied bias, but did not conduct a hearing concerning claim of UCI. Reversed and remanded for DuBay hearing. Case illustrates nexus between UCI and implied bias. Quantum of evidence to raise UCI is “some evidence;” quantum of evidence to sustain challenge for cause is greater. Just because burden not met on challenge does not mean burden not met to raise UCI. “[I]n some cases, voir dire might not be enough, and . . . witnesses may be required to testify on the issue of UCI.”

H. Grounds for Challenge – Member has Bias Against/For Counsel.

1. Negative bias against specific counsel. Napolitano, 53 M.J. 162 (member indicated on questionnaire disapproval of civilian defense counsel’s behavior in another case; judge did not abuse discretion in denying challenge for cause because member retracted opinion and said he was not biased against the counsel; different result likely if member has had adversarial dealings with counsel). See also United States v. Rome, 47 M.J. 467 (C.A.A.F. 1998) (military judge abused discretion by failing to grant a challenge for cause, based on implied bias, against member who judge determined had engaged in unlawful command influence in previous unrelated court-martial and who defense counsel had personally and professionally embarrassed through cross examination in previous high-profile case).

2. Bias against defense attorneys (in general). Townsend, 65 M.J. 460. When asked his “opinions of defense counsels,” member said he had a “mixed view.” While he respected military defense counsel as military officers with high ethical and moral standards, he had a “lesser respect for some of the ones you see on TV, out in the civilian world,” an apparent reference to the member’s regular viewing of the television show Law and Order. Court upheld military judge’s denial of the challenge for cause, noting no actual or implied bias was present.

3. Positive bias for specific counsel. United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015) (member bias based on the professional relationship between a member and the trial counsel; battalion commander disclosed on voir dire that he has regular engagements with trial counsel about legal issues and even had a phone conversation the night before voir dire about another legal issue and closed the conversation with, “I’ll see you tomorrow.”  Trial Counsel provided “testimonial” that LTC is one of the most conscientious and thoughtful commanders within the brigade. . . . He takes this incredibly seriously as evidenced by his answers.”  Defense counsel challenged the LTC for cause, which was denied by the Military Judge after he considered the implied bias liberal grant mandate.  In a 3-2 decision, CAAF determined that the TC’s comments amounted to a personal endorsement and emphasized that a military judge should err on the side of granting a challenge for cause. The majority concluded that the relationship in this case rose to the level of implied bias requiring reversal. The dissenters each wrote separately, emphasizing largely pragmatic concerns with the majority’s analysis.  

I. Grounds For Challenge – Accused Should Testify. United States v. Ovando-Moran, 48 M.J. 300 (C.A.A.F. 1998). No abuse of discretion to deny challenge for cause against member who considered it unnatural if accused failed to testify. Court reasoned that MJ’s explanation of accused’s right to remain silent and member’s statement that he would put preconceptions aside supported view that that member’s “misperception” was not a personal bias against accused.

J. Grounds For Challenge – Accused Should Plead Guilty. United States v. White, No. ARMY 20011132, 2003 CCA LEXIS 317 (A. Ct. Crim. App. Dec. 8, 2003). During individual voir dire, panel member said he observed a trial of one of his Soldiers who had been charged with sexually abusing a child. He said he resented the Soldier – who was clearly guilty – for pleading not guilty and forcing the child victim to testify. The trial counsel asked the member a few rehabilitation questions and the member agreed the other case would not affect his deliberations in the present case. The ACCA held the military judge did not abuse her discretion in denying the defense challenge for cause. Relying on United States v. Elfayoumi, 66 M.J. 354, 357 (C.A.A.F. 2008), the court noted that panel members are also members of society who may have strongly-held personal views which is part of the “human condition.” In this case, a reasonable observer understanding the human condition would not question the neutrality, impartiality, and fairness of the proceeding.

IX. Challenges for Cause – Logistics

A. Timing Of Challenges. UCMJ art. 41.

1. UCMJ art. 41(a)(2). If exercise of challenge for cause reduces court below minimum required per Article 16 (8 members for GCM, 4 members for SPCM), the parties shall exercise or waive all other causal challenges then apparent. Peremptories will not be exercised at this time.

2. UCMJ art. 41(b). Each party gets one peremptory. If the exercise of a peremptory reduces court below the minimum required by Article 16, the parties must use or waive any remaining peremptory challenge against the remaining members of the court before additional members are detailed to the court. Id. at (b)(2)

3. UCMJ art. 41(c). When additional members are detailed to the court, the parties get to exercise causal challenges against those new members. After causal challenges are decided, each party gets one peremptory challenge against members not previously subject to a peremptory challenge.

4. See United States v. Dobson, 63 M.J. 1 (C.A.A.F. 2006). The accused selected an enlisted panel to hear her contested premeditated murder case. After the military judge’s grant of challenges for cause (CfCs) and peremptory challenges (PCs) the GCMCA needed to twice detail additional members for the court-martial to obtain ⅓ enlisted members, as required by Article 25, UCMJ.

The issue on appeal was whether the MJ erred by granting the parties’ PCs after the ⅓ enlisted quorum, as required by Article 25, UCMJ, was busted after the 1st and 2nd CfCs were granted. While ⅓ enlisted quorum was broken after the 1st and 2nd CfCs, the panel membership never dropped below five members as required for a general court-martial under Article 16, UCMJ. The defense argued that the MJ should not have granted the parties’ PCs once the ⅓ enlisted quorum was broken under Article 25, UCMJ even though the total membership requirements of Article 16, UCMJ were met. Article 41, UCMJ states that if the exercise of CfCs drops panel membership below Article 16 requirements that additional members will be detailed and PCs will not be granted at that time. Article 41, UCMJ, however, does not address panel membership falling below Article 25, UCMJ ⅓ enlisted requirements. The CAAF held that the MJ did not error by granting PCs when Article 25 quorum was lacking but Article 16 quorum was met. The CAAF reasoned that “[t]he enlisted representation requirement in Article 25 employs a percentage, not an absolute number[, unlike Article 16,]. . . [a]s a result, there are circumstances in which an enlisted representation deficit under Article 25 can be corrected through exercise of a peremptory challenge against an officer.” Defense also objected to the GCMCA detailing two additional officers to the panel after the 1st CfCs were granted as an attempt to dilute enlisted representation. The CAAF stated that the accused is entitled only to ⅓ enlisted membership and the rules do not “require the [GCMCA] to add only the minimum number and type [of members] necessary to address a deficit under Article 16 or 25.

B. Preserving Denied Causal Challenges. R.C.M. 912(f)(4).

1. Background. Executive Order Amended R.C.M. 912(f)(4) and the “But For” Rule. See Executive Order 13387 – 2005, dated 18 October 2005. R.C.M. 912(f)(4) was amended by deleting the fifth sentence and adding other language to state: “When a challenge for cause has been denied the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review.”

2. Old rule. United States v. Jobson, 31 M.J. 117 (C.M.A. 1990). The CMA translated the old version of R.C.M. 912 (f)(4) as follows:

a. If counsel does not exercise her peremptory challenge, she waives her objection to the denied causal challenge. She preserves the denied causal if she uses her peremptory against any member of the panel. But…

b. If she uses her peremptory against the member she unsuccessfully challenged for cause and fails to state the “but for” rule, she waives your objection to the denied causal. So…

c. Counsel preserves her denied causal if she uses her peremptory against the member she unsuccessfully challenged for cause and she states the “but for” rule (i.e., “I’m using my peremptory to excuse Member X; but for your denial of my challenge for cause of Member X, I would have used my peremptory on Member A.”).

3. Current rule. R.C.M. 912(f)(4). If “objectionable” member does not sit on the panel (for example, if defense counsel uses peremptory challenge to excuse the member), the appellate court will not review the military judge’s denial of a challenge for cause for that member. The challenge will also be waived on appeal if the party exercising the challenge does not exercise its peremptory challenge against another member.

a. Ross v. Okla., 487 U.S. 81 (1988). Defense had to use peremptory challenge to remove juror who should have been excused for cause; no violation of Sixth Amendment or due process right to an impartial jury. “Error is grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him.”

b. United States v. Medina, 68 M.J. 587, 592 (N-M Ct. Crim. App. 2009). Defense counsel challenged member on implied bias grounds at trial and the military judge denied the challenge. Following the denial, defense did not exercise a peremptory against any member. The court held, “Failure to exercise a peremptory challenge against any member constitute[s] waiver of further review of an earlier challenge for cause, therefore, this issue is without merit.” (citing R.C.M. 912(f)(4)).

c. Cf. United States v. Eby, 44 M.J. 425 (C.A.A.F. 1996). The defense failed to preserve for appeal the issue of prejudice under R.C.M. 912(f)(4) by using its peremptory challenge against a member who survived a challenge for cause without stating that the defense would have peremptorily challenged another member if military judge had granted the challenge for cause.

d. United States v. Walker, 2012 CCA LEXIS 396, at *8-9 (N-M Ct. Crim. App. Sep. 26, 2012) ("Therefore, the plain language of R.C.M. 912(f)(4) in effect at the time of the appellant's misconduct, trial, and this appeal reflects that the appellant's successful use of a peremptory challenge against LtCol W waived further review of his unsuccessful challenge for cause of LtCol W. However, the appellant invites this court to conclude that the President exceeded his statutory authority to prescribe rules for military courts by making this amendment to R.C.M. 912(f)(4). Appellant's Brief at 12, 14-15. We decline that invitation and conclude, consistent with the plain language of R.C.M. 912(f)(4), that successful use of a peremptory challenge by either party against a member precludes appellate review of any denial of a challenge for cause against that member."); see also, United States v. Tapp, 2023 CCA LEXIS 106, at *36 (N-M Ct. Crim. App. Feb. 28, 2023) (waiver per RCM 912(f)(4).

C. During-Trial Challenges. Although challenges to court members are normally made prior to presentation of evidence, R.C.M. 912(f)(2)(B) permits a challenge for cause to be made “at any other time during trial when it becomes apparent that a ground for challenge may exist.” Peremptory challenges may not, however, be made after presentation of evidence has begun.

1. United States v. Camacho, 58 M.J. 624 (N-M Ct. Crim. App. 2003). During lunch break after completion of Government case on merits and rebuttal, the President of panel was overheard stating to government witness, “It’s execution time,” and making certain gestures, “including a vulgar one with his finger.” Id. at 632. Challenge for cause granted, which left only two members in this BCD-Special CM. Four new members were detailed, two of whom remained after voir dire and challenges. The remaining members were read all testimony without original members present. While the case was affirmed, the court noted, “Of great importance in this case is the fact that the defense offered no objection to the detailing of new members and the reading of testimony to those members . . . .” Id. at 633.

2. United States v. Bridges, 58 M.J. 540 (C.G. Ct. Crim. App. 2003). After findings, DC moved to impeach findings due to unlawful command influence (SJA email reporting child sex abuse case). DC claimed that, had she known of email, she would have questioned members about it and “might have elicited some information as to bias.” Id. at 550. BUT, DC did not challenge any member for cause at that time or specifically ask the military judge to permit additional voir dire on the issue. HELD: The email on its own was not “an apparent ground for challenge for cause.” Id. at 551. As such, the military judge did not abuse his discretion by failing to sua sponte reopen voir dire.

3. United States v. Millender, 27 M.J. 568, 570 (1988) (A.C.M.R. 1988). During break in court-martial, member asked legal clerk if it would be possible to learn the “other sentence.” Challenge denied; no exposure to extra-judicial information which could influence deliberations. Court noted the legal clerk did not answer the member’s questions and immediately reported the question to the military judge (who properly investigated and found no outside information had been given to the member).

4. United States v. Arnold, 26 M.J. 965 (A.C.M.R. 1988) ("Once a potential cause for challenge arises, it is important for both counsel and the military judge to clarify the issue. Such examination, however, should not be an exercise solely in rehabilitation. If a basis for a challenge for cause is established, or if there is any doubt as to the member's impartiality, the challenge must be granted. In the case before the court, there was serious doubt regarding COL K's ability to remain impartial. The fact that the witness had appeared before COL K in a prior case is not sufficient in itself to sustain a challenge for cause. 1 It is apparent from COL K's testimony, however, that he considered Private Bass a credible witness. Where the issue of guilt is decided solely on the credibility of witnesses, the question of fairness arises.") Take away - If member recognizes a witness, conduct individual voir dire to test for bias.

D. Challenges after Trial.

1. United States v. Sonego, 61 M.J. 1 (C.A.A.F. 2005). Members sentenced the accused after his guilty plea to ecstasy use. During voir dire CPT Bell, a member, stated in response to the MJ’s group voir dire questions that he did not have an inelastic predisposition as to punishment. Approximately a month after the accused’s court-martial his attorney was representing another airman for drug use. During that court-martial CPT Bell stated that any service member convicted of a drug offense should receive a BCD. A verbatim transcript was not made for this second court-martial because it resulted in acquittal but the defense attorney submitted an affidavit recounting CPT Bell’s different responses. On an issue of first impression the CAAF granted review to determine the “measure of proof required to trigger an evidentiary hearing” based on an allegation of juror dishonesty. Noting that the federal circuits differ on this issue, the CAAF adopted a “colorable claim” test requiring “something less than proof of juror dishonesty before a hearing is convened.” The court, ordering a DuBay hearing, ruled that the defense attorney’s affidavit constituted a “colorable claim” of juror dishonesty to warrant a further evidentiary hearing.

2. United States v. Humpherys, 57 M.J. 83 (C.A.A.F. 2002). Defense submitted a post-trial motion for a new trial based on discovery that two members were in the same rating chain, although both answered the military judge’s question on that issue in the negative. The military judge held a post-trial 39(a) session and questioned the involved members, during which both responded that they did not remember the military judge asking the question, and their answers were not an effort to conceal the rating chain relationship. The military judge concluded the members’ responses during trial were “technically . . . incomplete,” but their responses in the Article 39(a) session caused him to conclude he would not have granted a challenge for cause based on the relationship. He denied the defense motion for new trial. HELD: affirmed. In order to receive a new trial based on a panel member’s failure to disclose info during voir dire, defense must make two showings: (1) that a panel member failed to answer honestly a material question on voir dire; and (2) that a correct response would have provided a valid basis for a challenge for cause. “[A]n evidentiary hearing is the appropriate forum in which to develop the full circumstances surrounding each of these inquiries.” Id. at 96. Appellate court’s role in process is to “ensure the military judge has not abused his or her discretion in reaching the findings and conclusions.” Here the military judge did not abuse his discretion where he determined that “full and accurate responses by these members would not have provided a valid basis for a challenge for cause against either or both.” Id. at 97.

3. United States v. Dugan, 58 M.J. 253 (C.A.A.F. 2003). The military judge refused to grant a post-trial 39(a) session to voir dire members concerning UCI in deliberations. The CAAF remanded for a DuBay hearing. Under these circumstances, M.R.E. 606(b) “permits voir dire of the members regarding what was said during deliberations about [the alleged UCI comments of a commander], but the members may not be questioned regarding the impact of any member’s statements or the commander’s comments on any member’s mind, emotions, or mental processes.” Id. at 260.

E. Military Judge’s Duty AND Sua Sponte Challenges. Challenges. Under R.C.M. 912(f)(4), a military judge may excuse a member sua sponte for actual or implied bias: “Notwithstanding the absence of a challenge or waiver of a challenge by the parties, the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie.” However, failure to excuse a member sua sponte will normally not require reversal.

1. United States v. Velez, 48 M.J. 220, 222 (C.A.A.F. 1998). In a case involving two specifications of rape and two specifications of assault, the MJ did not err by failing, sua sponte, to remove three panel members based on implied bias. The implied bias doctrine was not invoked because the record established the following: the member who admitted knowing one of the rape victims had a tenuous relationship with victim, disavowed that this relationship would influence him, and the defense failed to challenge the member on such grounds; second member disavowed that command relationship with government rebuttal witness would influence him, and the defense counsel failed to challenge the member on that ground; the third member frankly disclosed that he had two friends who were victims of rape, and that he has a 15-year-old daughter he wanted to protect from rape, but disavowed improper influence and stated that he would follow the MJ’s instructions.

2. United States v. McFadden, 74 M.J. 87, 90 (C.A.A.F. 2015) ("This Court has characterized the discretionary authority of a military judge to excuse a member sua sponte "'in the interest of justice'" as a "drastic action." We hold that the military judge did not have a duty to sua sponte excuse Major Cereste. (citing United States v. Velez, 48 M.J. 220, 225 (C.A.A.F. 1998) (quoting R.C.M. 912(f)(4)).

3. United States v. Mendoza, 2020 CCA LEXIS 200, at *4 (A. Ct. Crim. App. June 5, 2020) ("The military judge "may, in the interest of justice, excuse a member against whom a challenge for cause would lie." R.C.M. 912(f)(4) (emphasis added). Our Superior Court has recognized that the word "may" implies discretion, giving a military judge the discretionary authority to excuse a member against whom a challenge for cause would lie, even if neither party challenged that member." (citing United States v. McFadden, 74 M.J. 87, 90 (C.A.A.F. 2015)).

4. United States v. Strand, 59 M.J. 455 (C.A.A.F. 2004). Court member was son of officer who acted as convening authority in the case. The member’s father acted to excuse and detail new members in the absence of the regular GCMCA. The defense did not challenge the son for cause. On appeal, the defense contended that the military judge had a sua sponte duty to remove the son for implied bias. The court held that the military judge did not abuse his discretion in declining to sua sponte excuse the member, and declined to adopt a per se “familial relationship” basis for excusal. Here, the government revealed the familial relationship, and the military judge allowed both parties a full opportunity to voir dire the member. Although the military judge may excuse an unchallenged member in the interest of justice, there must be justification in the record for such a drastic action. The record in this case did not reveal an adequate justification for such action.

3. See also United States v. Collier, , 2008 CCA LEXIS 53 (N-M Ct. Crim. App. Feb. 21, 2008) (unpublished). In a bizarre case, trial counsel challenged a member for cause, based on implied bias. Defense counsel objected to the challenge, which the government then withdrew. On appeal, defense argued the military judge should have excused the member sua sponte for implied bias. During voir dire, the member stated he was an Administration Officer, knew three of the witnesses in the case (he interacted with them on a daily basis and was in the rating chain for two of them), and recognized the accused’s name from reviewing personnel rosters. The member had been on a cruise for seven months and had no knowledge of the facts of the case. In response to the government challenge for cause of this member, the defense counsel said: “[W]e feel that there’s no problem with him. He’s been on [a] cruise and has no knowledge of any of that.” The military judge asked defense counsel why he objected to the government challenge and, before counsel could answer, the trial counsel withdrew the challenge for cause, but added, “We were more concerned with appearance. But, we’ll withdraw our challenge for cause, if defense objects to that.” In affirming the case, the court noted the member’s minimal knowledge of the accused was “matter-of-fact and devoid of emotion.” The member also stated that his professional relationship with three government witnesses would not affect his assessment of their testimony. Finally, in deciding there was no bias, the court noted “perhaps most tellingly” that the defense counsel at trial objected to the challenge.

X. Peremptory Challenges Generally

Rule: One per side, unless new members are detailed. See Article 41(b)(1), UCMJ.

A. Additional Peremptory. United States v. Carter, 25 M.J. 471 (C.M.A. 1988). Judge improperly denied defense request for additional peremptory after panel was “busted” and new members were appointed; however, error was harmless. See also Rivera v. Illinois, 556 U.S. (2009) (noting “there is no freestanding constitutional right to peremptory challenges” and a peremptory challenge is “a creature of statute.”).

1. No Sixth Amendment right to a peremptory challenge. Ross v. Oklahoma, 487 U.S. 81(1988).

2. No Fifth Amendment due process right to peremptory challenge. United States v. Martinez-Salazar, 528 U.S. 504 (2000).

3. But Cf. United States v. Pritchett, 48 M.J. 609 (A.F. Ct. Crim. App. 1998). Military judge erred to the prejudice of the accused by denying the accused his statutory right to exercise a peremptory challenge against one of the new court members added after the original panel as supplemented fell below quorum. In a forcible sodomy and indecent liberties with a child case, the panel twice fell below quorum. After the third voir dire, the military judge denied both sides the right to exercise peremptory challenges. The defense implied that it desired to exercise the challenge and the MJ replied, “I don’t want to hear anymore about it. I ruled.” The exercise of a peremptory challenge is a statutory right. Deprivation of that right carries a presumption of prejudice, absent other evidence in the record, requiring automatic reversal.

B. No conditional peremptory challenges. United States v. Newson, 29 M.J. 17 (C.M.A. 1989). It was improper for judge to allow trial counsel to “withdraw” peremptory challenge after defense counsel reduced enlisted membership below one-third quorum. But see United States v. Owens, , 2005 CCA LEXIS 182 (N-M Ct. Crim. App. June 17, 2005) (unpub.). Government exercised its peremptory challenge (PC), defense exercised its PC, and the MJ then asked defense if they had any objection to the government’s PC. Defense objected but prior to the MJ’s ruling the government withdrew its PC and then the MJ allowed the government to PC a different member to which procedure the defense objected. While “ordinarily” the government must exercise its PC prior to the defense and the MJ cannot alter this procedure “without a sound basis,” the N-MCCA reasoned that a sound basis existed because of the defense’s untimely objection which if timely made would have allowed the government to exercise its PC prior to the defense.  In the alternative, even if the MJ erred no prejudice accrued to the accused particularly where the member, who the government tried to PC with defense objection, ultimately sat on the case.

 .

C. Peremptory challenges against alternates. A challenge against a member is not preserved if counsel uses a peremptory challenge against that member. R.C.M. 912(f)(4). This general rule will likely apply the same to challenges of alternate members, with the caveat that an alternate who did not deliberate will likely not raise the same concerns as one who did. Practitioners should recognize that the relevant member pool for peremptory challenge includes any authorized alternates. Practitioners should carefully consider how to use the peremptory challenge, noting that alternate members only deliberate on the excusal of a member.

XI. Discriminatory Peremptory Challenges – Batson

A. In General. Batson v. Kentucky prohibits the use of unlawful discrimination in the exercise of a peremptory challenge. The Batson case expressly prohibited race-based challenges. Subsequent Supreme Court cases have extended Batson to forbid peremptory challenges based on race or gender.

1. The origin. Batson v. Kentucky, 476 U.S. 79 (1986). The Supreme Court held that a party alleging that an opponent was exercising peremptory challenges for the purpose of obtaining a racially-biased jury had to make a prima facie showing of such intent before the party exercising the challenges was required to explain the reasons for the strikes (prosecutor had used peremptory challenges to strike all four of the African-Americans from the venire, with the result that Batson, an African-American, was tried by an all-white jury). The three-part Batson test requires: (1) a prima facie case of discrimination, (2) then the provision of a race neutral reason, and (3) proof of purposeful discrimination.

2. Military application. The Supreme Court has never specifically applied Batson to the military. However, military caselaw has applied Batson to peremptory challenges through the Fifth Amendment. Military courts have, in some instances, made Batson even more protective of a member’s right to serve. Under Batson, counsel cannot exercise a peremptory challenge based on race or gender.

a. United States v. Santiago-Davila, 26 M.J. 380 (C.M.A. 1988) (equal protection right to be tried by a jury from which no racial group has been excluded is part of due process and applies to courts-martial). Court in Santiago recognized that “in our American society, the Armed Services have been a leader in eradicating racial discrimination,” and held that government’s use of only peremptory challenge against minority court member raised prima facie showing of discrimination.

b. In the military, a trial counsel addressing a Batson challenge cannot proffer a reason that is “unreasonable, implausible, or that otherwise makes no sense.” See United States v. Tulloch, 47 M.J. 283, 287 (C.A.A.F. 1997). By contrast, civilian courts only need a reason that is not “inherently discriminatory,” even if explanation is not “plausible.” See Rice v. Collins, 546 U.S. 333 (2006).

c. United States v. Moore, 28 M.J. 366 (C.M.A. 1989) adopted a per se rule that “every peremptory challenge by the Government of a member of the accused's race, upon objection, must be explained by trial counsel” This is further expanded by Powers below:

3. Making a Batson challenge. If either side exercises a challenge against a panel member who is a member of a minority group, then the opposing side may object and require a race-neutral reason for the challenge.

4. Batson applies to defense. United States v. Witham, 47 M.J. 297 (C.A.A.F. 1997) (holding Batson applicable to defense in courts-martial); Georgia v. McCollum, 505 U.S. 42(1992) (holding that the Constitution prohibits a civilian criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges). If the government can show a prima facie case, the burden shifts to the defense to provide a race neutral reason for their peremptory challenge.

5. Preventative Batson? In United States v. Bess, 80 M.J. 1, 4 (C.A.A.F. 2020), defense counsel stated that the panel included no African-Americans and the accused was an African-American.  The defense counsel argued that this is a violation of Batson based on the convening authority’s exclusion of African-Americans.  Defense counsel argued: "[I]t's . . . basically a combination of an Article 25 challenge and, I guess, it's almost like a preventative Batson challenge. If you don't put any African-Americans on the panel from the get-go, then you can't get a Batson challenge because nobody is getting eliminated based on their race." Id. at 4. The military judge rejected this challenge because of the "absen[ce] [of] any evidence of anything inappropriate being done by the convening authority in assembling the panel."  CAAF affirmed holding that “Race is not one of the criteria [under Article 25].” Id. at 7; see also, United States v. Jeter, 81 M.J. 791, 797 (N-M Ct. Crim. App. 2021) (while finding the selection process “proper” the NMCAA did warn that a CA could violate UCMJ 25 and 37 through exclusion: “While convening authorities are presumed to act in accordance with Articles 25 and 37, UCMJ, this presumption, like any other, can be called into question under the totality of the circumstances. In this case, because there appeared to be at least some evidence of actual exclusion (even if not purposeful) of members of the accused's own racial group, this Court ordered affidavits from the convening authority, acting convening authority, and SJA to provide their rationale for selection of the members in Appellant's case.”)

 

B. Parameters of Race-Based Challenges.

1. Accused and member need not be of the same racial group. Powers v. Ohio, 499 U.S. 400 (1991). “The Equal Protection Clause prohibits a prosecutor from using the State’s peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely on their race. . . .”

a. Court’s holding removes the requirement from Batson that the accused and challenged juror be of the same race.

b. Court’s ruling in Powers is very broad. Focuses on both the rights of the accused as well as the challenged member.

c. Prosecutors must now be prepared to articulate a race-neutral reason for all peremptory challenges, regardless of the races of the accused or member.

2. Race defined. Hernandez v. New York, 500 U.S. 352 (1991) (extending Batson to potential jurors who were bilingual Latinos, with the Court viewing Latinos as a cognizable race for Batson purposes and referring to Latinos as both a race and as an ethnicity). See also United States v. Martinez-Salazar, 528 U.S. 304 (2000) (“a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror’s gender, ethnic origin, or race”). To date the Supreme Court has applied Batson only to classifications which have received heightened scrutiny; race, gender, and ethnic origin (thus far limited to Latinos). But see Rico v. Leftridge-Byrd, 340 F.3d 178 (3d Cir. 2003) (Batson prohibits the exercise of peremptory challenges based on ethnic origin of Italian-Americans).

C. Parameters of Gender-Based Challenges. As discussed above, Batson applies to gender-based challenges. J.E.B. v. Ala., 511 U.S. 127 (1994). JEB held that the Equal Protection Clause prohibits litigants from striking potential jurors solely on the basis of gender. Ruling extends the concept that private litigants and criminal defense attorneys are “state actors” during voir dire for purposes of Equal Protection analysis. See also United States v. Omoruyi, 7 F.3d 880 (9th Cir. 1993) (prosecutor claimed that he used peremptory challenges against two single females because he thought they “would be attracted to the defendant” because of his good looks; court finds this was gender-based discrimination).

1. Applies to military. United States v. Witham, 47 M.J. 297 (C.A.A.F. 1997) (gender, like race, is an impermissible basis for the exercise of a peremptory challenge by either the prosecution or the military accused).

2. Trial counsel must provide gender-neutral reason for striking member. United States v. Ruiz, 49 M.J. 340 (C.A.A.F. 1998) (the per se rule developed in United States v. Moore, 28 M.J. 366 (C.M.A. 1989), is applicable to Government peremptory challenges based on gender whether a MJ requests a gender neutral reason or not).

3. Generally, additional voir dire is unnecessary. United States v. Bradley, 47 M.J. 715 (A.F. Ct. Crim. App. 1997). Accused charged with rape and assault. Trial counsel’s exercise of peremptory challenge against one of two remaining members based on fact that member challenged was investigating officer on a case involving the legal office was gender-neutral and valid under Batson, and did not require military judge to grant defense request for additional voir dire to explore the basis of the trial counsel’s supporting reason. Neither Witham nor Tulloch elevate a peremptory challenge to the level of a causal challenge (party making peremptory challenge need only provide a race neutral explanation in response to a Batson challenge).

4. Occupation-based peremptory challenges (subterfuge for gender?). United States v. Chaney, 53 M.J. 383 (C.A.A.F. 2000). The government used its peremptory challenge against the sole female member. After a defense objection, TC explained that member was a nurse. Military judge interjected that in his experience TCs “rightly or wrongly” felt members of medical profession were sympathetic to accuseds, but that it was not a gender issue. Defense did not object to this contention or request further explanation from TC. CAAF upheld the military judge’s ruling permitting the peremptory challenge, noting that the military judge’s determination is given great deference. CAAF noted it would have been preferable for the MJ to require a more detailed clarification by TC, but here DC failed to show that the TC’s occupation-based peremptory challenge was unreasonable, implausible or made no sense.

D. Parameters of Race- And Gender-Neutral Reasons. The Supreme Court has held that the “genuineness of the motive” rather than “the reasonableness of the asserted nonracial motive” is what is important. Purkett v. Elem, 514 U.S. 765 (1995) (Missouri prosecutor struck two African-American men from panel stating “I don’t like the way they looked,” and they “look suspicious to me;” this is a legitimate hunch, and the Batson process does not demand an explanation that is “persuasive or even plausible;” only facial validity, as determined by trial judge, is required). See Rice, 546 U.S. 333. The prosecutor struck a minority female because (1) she had rolled her eyes in response to a question from the court; (2) she was young and might be too tolerant of a drug crime, and (3) she was single and lacked ties to the community. The trial judge did not observe the eye roll but allowed the challenge based on the second and third grounds. The trial judge noted that the government also used a PC against a white male juror because of his youth. The Supreme Court, citing Purkett, 514 U.S. 765, stated that a race neutral explanation “does not demand an explanation that is persuasive, or even plausible, so long as the reason is not inherently discriminatory, it suffices.” See also Hernandez, 500 U.S. 352 (“[A]n explanation based on something other than the race of the juror. . . Unless a discriminatory intent is inherent in the prosecutor’s explanation the reason offered will suffice.”).

1. Different standard for trial counsel. Peremptory challenges are used to ensure qualified members are selected, but, in the military, the convening authority has already chosen the “best qualified” after applying Article 25, UCMJ. Therefore, under Batson, Moore, and Witham, trial counsel may not strike a person on a claim that is unreasonable, implausible, or otherwise nonsensical. Tulloch, 47 M.J. 283. Tulloch is a departure from Supreme Court precedent, which requires only that counsel’s reason be “genuine.” Purkett, 514 U.S. 765.

a. Tulloch: Accused was African-American. Trial counsel moved to strike African-American panel member based on “demeanor,” claiming member appeared to be “blinking a lot” and “uncomfortable.” CAAF held this was insufficient to “articulate any connection” between the purported demeanor and what it indicated about the member’s “ability to faithfully execute his duties on a court-martial.” Trial counsel’s peremptories are assessed under a “different standard.”

b. Trial counsel must be able to defend the peremptory challenge as non-pretext.

c. Counsel cannot simply affirm his good faith or deny bad faith in the use of the peremptory.

d. Counsel must articulate a connection between the observed behavior, etc., and a colorable basis for challenge (e.g., “member’s answers to my questions suggested to me she was not comfortable judging a case based on circumstantial evidence alone,” etc.).

e. Military judge should make findings of fact when the underlying factual predicate for a peremptory challenge is disputed, particularly where the dispute involves in-court observations of the member. The military judge should make “findings of fact that would establish a reasonable, plausible race-neutral explanation for a peremptory challenge by the Government of a member chosen as ‘best qualified’ by a senior military commander.” Tulloch, 47 M.J. 283.

2. Fact-specific inquiry and inconsistent results.

a. United States v. Robinson, 53 M.J. 749 (A. Ct. Crim. App. 2000). Trial counsel’s proffered reason for striking minority member (that he was new to the unit and that his commander was also a panel member) was unreasonable. Counsel did not articulate any connection between the stated basis for challenge and the member’s ability to faithfully execute the duties of a court-martial member. Sentence set aside.

b. United States v. Shelby, 26 M.J. 921 (1988) (N.M.C.M.R. 1988). Trial counsel peremptorily challenged junior African-American officer in sodomy trial of African-American accused. Inexperience of junior member was accepted racially-neutral explanation, even though other junior enlisted members remained.

c. United States v. Curtis, 28 M.J. 1074 (1989) (N.M.C.M.R. 1989), rev’d on other grounds, 33 M.J. 101 (C.M.A. 1991). Trial counsel challenged African-American member who stated that serving on court-martial in a capital case would be a good “learning experience.” Upheld as a racially-neutral explanation.

d. United States v. Woods, 39 M.J. 1074 (1994) (A.C.M.R. 1994). TC says, “We just did not get the feeling that SSG Perez was paying attention and would be a good member for this panel. It had nothing to do with the fact that his last name was Perez. I mean there is no drug stereotype here.” Court holds TC’s articulated basis (inattentiveness) was not pretext for intentional discrimination.

3. The numbers game and protecting quorum. United States v. Hurn, 55 M.J. 446 (C.A.A.F. 2001). The DC objected after the TC exercised the government’s peremptory challenge against panel’s only non-Caucasian officer. TC’s basis “was to protect the panel for quorum.” CAAF held the reason proffered did not satisfy the underlying purpose of Batson, Moore, and Tulloch, which is to protect the participants in judicial proceedings from racial discrimination.

a. Case remanded for DuBay hearing based on TC’s affidavit, filed two and a half years after trial, which set forth other reasons for challenging the member in question.

b. Post-DuBay: United States v. Hurn, 58 M.J. 199 (C.A.A.F. 2003). In DuBay hearing, TC testified he also removed the member because the member had expressed concern about his “pressing workload.” MJ determined challenge was race-neutral. CAAF affirmed, finding no clear error: “The military judge’s determination that the trial counsel’s peremptory challenge was race-neutral is entitled to great deference and will not be overturned absent clear error” (internal quotations and citations omitted). But see Greene, below (holding where part of the reason for a challenge is not race-neutral, the entire reason must fail).

4. Valid logistical reasons for using peremptory. United States v. Clemente, 46 M.J. 715 (A.F. Ct. Crim. App. 1997). Trial counsel’s use of peremptory challenge to remove only Filipino member of panel because member was scheduled to go on leave during the trial was race neutral. Defense counsel acquiesced in objection by stating that “it would accept it and was ready to go ahead and continue.

E. Mixed Motive Challenges Are Improper. United States v. Greene, 36 M.J. 274 (C.M.A. 1993). Two reasons for exercise of peremptory challenge: one reason was facially valid and race-neutral; the second amounted to a “gross racial stereotype” and was clearly not race neutral. Where part of the reason for a challenge is not race neutral, the entire reason must fail. Findings and sentence set aside. See also McCollum, 505 U.S. at 54 (civilian defendant’s use of peremptory challenges based on racial consideration was prohibited).

F. Beyond Race/Ethnic Group And Gender, Batson Is Generally Inapplicable.

1. Marital status. Peremptory challenges based on marital status do not violate Batson. United States v. Nichols, 937 F.2d 1257 (7th Cir. 1991).

2. Age. Peremptory challenges based on age do not violate Batson. Bridges v. State, 695 A.2d 609 (Md. Ct. Spec. App. 1997).

3. Religion. The Supreme Court has not ruled on whether Batson extends to religious-based peremptory challenges.

a. United States v. Williams, 44 M.J. 482 (C.A.A.F. 1996). Trial counsel peremptorily challenged a member who was the senior African-American officer after he indicated that he was a member of the Masons. The accused was also a Mason. No abuse of discretion for the MJ to grant the peremptory challenge where the TC indicated the race neutral reason was that the member and accused were members of the same fraternal organization. While recognizing that the Supreme Court has not extended Batson to religion, the court noted that the record in this case was “devoid of any indication of [the member’s] religion.” CAAF cites Casarez v. Texas, 913 S.W.2d 468, 496 (Tex. Crim. App. 1994) (on rehearing), and State v. Davis, 504 N.W.2d 767 (Minn. 1993), cert. denied, 511 U.S. 1115 (1994), as authority that Batson does not apply to religion.

b. Two federal circuits have decided the status of religion-based Batson strikes on the merits.

(1) United States v. DeJesus, 347 F.3d 500 (3d Cir. 2003). Court drew a distinction between a strike motivated by religious beliefs and one motivated by religious affiliation. The court found strikes motivated by religious beliefs (i.e. heightened religious activity) were permitted; no occasion to rule on issue of religious affiliation. The Seventh Circuit makes the same distinction in dicta, but did not resolve the issue because the court found no plain error. United States v. Stafford, 136 F.3d 1109 (7th Cir. 1998).

(2) United States v. Brown, 352 F.3d 654 (2d Cir. 2003). Batson applies to challenges based on religious affiliation. “Thus, if a prosecutor, when challenged, said that he had stricken a juror because she was Muslim, or Catholic, or evangelical, upholding such a strike would be error. Moreover, such an error would be plain.” Strikes at issue involved heightened religious activity, so did not violate Batson.

c. One circuit has not addressed the issue. United States v. Girouard, 521 F.3d 110, 113 (1st Cir. 2008) (“We have never held that Batson applies to cases of religious discrimination in jury selection. Even assuming, arguendo, that Batson does apply to claims of religious discrimination, we find no clear error in the district court’s action. It is therefore unnecessary to resolve the open question of whether Batson does indeed apply to religious discrimination.”).

d. States are split on whether Batson extends to religion. Compare Thorson v. State, 721 So. 2d 590, 594 (Miss. 1998) (extending Batson to peremptory strikes based on religion); State v. Purcell, 18 P.3d 113, 120 (Ariz. Ct. App. 2001) (concluding that Batson extends to peremptory challenges based on religious affiliation); with Davis, 504 N.W.2d at 771 (rejecting argument that Batson includes peremptory strikes based on religious affiliation); State v. Gowdy, 727 N.E.2d 579, 586 (Ohio 2000) (permitting peremptory challenge based on juror wearing a cross); Casarez v. State, 913 S.W.2d 468, 496 (Tex. Crim. App. 1994) (en banc) (holding that state interests in peremptory challenges warrant excluding jurors based on religious affiliation); James v. Commonwealth, 442 S.E.2d 396, 398 (Va. 1994) (same).

4. Membership in organization. United States v. Williams, 44 M.J. 482 (C.A.A.F. 1996). Accused and senior officer member of panel were members of the Masons. Peremptory challenge based on “fraternal affiliation” is race-neutral.

G. Recent Application of Batson. Snyder v. Louisiana, 552 U.S. 472 (2008). A civilian defendant was convicted of first-degree murder and sentenced to death. On appeal, defense argued the trial court erred by allowing the prosecution to use a peremptory challenge against an African-American juror despite a Batson challenge. In a 7-2 decision, the Court ruled the trial judge committed “plain error” by denying the Batson challenge.

1. Before jury selection, 85 prospective jurors were questioned during normal voir dire. Of those 85, only 36 survived challenges for cause; five of those remaining jurors were black. Under Louisiana practice, each side had 12 peremptory challenges. “[A]ll 5 of the prospective black jurors were eliminated by the prosecution through the use of peremptory strikes.” At issue on appeal, the defense lodged a Batson challenge against the prosecution’s peremptory challenge of one of the five black prospective jurors. Pursuant to Batson and its progeny, the prosecution gave two race-neutral reasons for using a peremptory. First, the prospective juror “looked very nervous” during questioning. Second, the prospective juror was a student teacher and said during voir dire that he was concerned jury duty might keep him from completing his requirements for the semester. Based on this second challenge, the prosecution speculated, “[H]e might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase.”

2. The Court looked at the other 50 members of the venire who said that jury duty would be an “extreme hardship.” Of those 50, there were 2 white members who had serious scheduling conflicts. First, Mr. Laws was a general contractor; he said that he had “two houses that are nearing completion” so if he served on the jury, those people would not be able to move in to their homes. Mr. Laws further said that he his wife recently had a hysterectomy so he was taking care of his children. He added, “[S]o “so between the two things, it’s kind of bad timing for me.” Second, Mr. Donnes approached the court with an “important work commitment” later that week; though not developed on the record, it was important enough that Mr. Donnes re-raised the conflict on the second day of jury selection.

3. The Court focused on the third Batson step, concluding that the prosecution’s “pretextual explanation naturally gives rise to an inference of discriminatory intent.” During jury selection, the judge’s law clerk called the dean at the prospective juror’s university, who said he could complete his student teaching observation even if he served on the jury. The Court concluded that the student teaching obligations were not a valid reason for exercising a peremptory, particularly in light of the other conflicts offered by two white jurors who ultimately sat as members.

H. Procedural Issues.

1. Timing. Use after peremptory challenge. United States v. Elliott, 89 F.3d 1360, 1364-65 (8th Cir. 1996) (holding the Batson challenge framework applies only to peremptory strikes). Defense should object to government’s peremptory challenge immediately after it has been stated by the government. See United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). The accused attacked military practice because it unnecessarily permits the Government a peremptory challenge even when it has not been denied a challenge for cause, contrary to Ford v. Georgia, 498 U.S. 411 (1991), which states: “The apparent reason for the one peremptory challenge procedure is to remove any lingering doubt about a panel member’s fairness . . . .” In the military, accused asserted that “the [unrestricted] peremptory challenge becomes a device subject to abuse.” The CAAF noted that Article 41(b) provides accused and the trial counsel one peremptory challenge. Neither Ford, nor any other case invalidates this judgment of Congress and the President.

2. Privacy. Military judge should use appropriate trial procedures to best protect privacy interest of challenged member.

3. Type of proceedings to substantiate reasons.

a. Argument by defense is typically enough to complete the record. But see United States v. Downing, 56 M.J. 419 (C.A.A.F. 2002). Appellant failed to meet burden of establishing that a court-martial panel member should have been dismissed for cause (bias), so it did not matter that the trial judge may have applied the wrong standard for challenge.

b. Affidavit, adversary hearing, and argument allowed, but evidentiary hearing denied. United States v. Garrison, 849 F.2d 103 (4th Cir.), cert. denied, 109 S. Ct. 566 (1988). See also Ruiz (above).

4. Findings on record.

a. Judge should enter formal findings concerning sufficiency of proffered reasons. MJ should make findings of fact when underlying factual predicate for a peremptory challenge is in dispute. See Tulloch above and United States v. Perez, 35 F.3d 632, 636 (1st Cir. 1994).

b. Military judge not required to raise the issue sua sponte, question member, or recall member for individual voir dire. See Clemente and Bradley, above.

5. Waiver. To preserve the Batson issue, defense counsel should make timely Batson challenge as well as object to the race- and gender-neutral reasons offered by trial counsel. Failure to object at both stages may constitute waiver.

a. United States v. Galarza, 2000 CCA LEXIS 374, at *4 (A. Ct. Crim. App. May 31, 2000).   Where defense made Batson objection to TC’s peremptory challenge of a female panel member, and TC stated member showed “indecisiveness” during voir dire, DC’s failure to object or to dispute TC’s proffered gender-neutral explanation for the peremptory challenge waived issue on appeal).

b. United States v. Irvin, , 2005 CCA LEXIS 99 (A.F. Ct. Crim. App. Mar. 24, 2005) (unpub.). Trial counsel peremptorily challenged only African-American panel member in a contested rape court-martial. MJ asked the TC for a race-neutral Batson reason, sua sponte, for the challenge. TC responded that the panel member might have preconceived ideas or positions from a rape court-martial she had previously sat on the week prior and she had previously heard testimony from one of the investigators. MJ accepted this reason and defense did not object to the TC’s reason or the MJ’s ruling. AFCCA held the defense counsel’s failure to object waived the issue and further that the MJ did not abuse his discretion in finding no purposeful discrimination by the TC.

6. Making the record of a Batson challenge – the outer limits. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). Military judge erred in not requiring counsel to articulate a “race-neutral” explanation for the Government’s use of its peremptory challenge against one of only two African-American panel members. Trial counsel did, however, provide a statement at the next court session, stating a race-neutral explanation for the challenge (claiming the member’s responses concerning the death penalty were equivocal). Trial counsel’s statement provided a sufficiently race-neutral explanation for the challenge, and the court found that public confidence in the military justice system had not been undermined. The military judge is required to make a determination as to whether trial counsel’s explanation was credible or pretextual and, optimally, an express ruling on this question is preferred. However, here the military judge clearly stated his satisfaction with trial counsel’s disavowal of any racist intent in making the challenge.

a. Avoid the issue. Government should use peremptory challenge sparingly and only when a challenge for cause has not been granted. The requirements of Batson will likely be satisfied if a facially-valid challenge for cause was denied before trial counsel exercised peremptory challenge:

b. United States v. Allen, 59 M.J. 515 (N-M Ct. Crim. App. 2003). Government challenged officer panel member for cause “based on the fact he had previously been a criminal accused in a military justice case and, therefore, would likely hold the Government to a higher standard of proof than required by law.” Military judge denied challenge for cause; government exercised its peremptory against the same member and defense made Batson challenge. Government gave same reason for peremptory as for challenge for cause. Court held the TC articulated a reasonable, race neutral and plausible basis for challenge.

XII. Practice Tips:  Voir dire Goals and How to Reach Them

A. Information Gathering.

1. The first goal (and the only one officially sanctioned by the Rules for Court-Martial) is information gathering. Panel members cannot sit unless they can be fair and impartial (R.C.M. 912(f)(1)(N)), so you need to be able to gather information on fairness and impartiality to make meaningful use of peremptory and causal challenges.

2. In civilian trials, the prospective juror pool is very large and somewhat represents a cross-section of society. Civilian attorneys have a bigger information gathering challenge than military attorneys do. Civilian attorneys really know nothing about these people and one of their primary goals is to get rid of the jerks and weirdos. We don’t have that problem. The convening authority has already screened this population and we should not expect jerks and weirdos to make the cut. Therefore, you can really refine your information gathering goals.

3. The problem is that panel members, like most human beings, will not say socially unacceptable things in public. Many psychological studies have shown that when people are put in group settings, they generally will say what they think the group expects them to say. If you ask panel members who are sitting in a formal courtroom in their Army Service Uniform and who might themselves be a field-grade officer and whose boss might also be on the panel, “Do you look at pornography,” don’t expect a lot of hands to go up. If you ask, “Would you be concerned if your daughter dated outside of your race,” don’t expect a lot of hands to go up.

4. To get responses that will accurately tell you whether a panel member might have a bias or belief that will impact your case, you need to ask those questions in a safe place – written individual voir dire.

a. All your panel members will have already completed a written questionnaire, but that questionnaire contains vanilla questions and answers. You want the panel members to complete a supplemental questionnaire where you provide them with a forum that will allow them to expose their beliefs without causing themselves personal embarrassment, and where they can have some “outs” (as in, shift the questioned belief or behavior to someone else). Here, you are much more likely to get reflective and accurate answers.

b. You will need to identify what experiences, biases, and beliefs exist that might impact how your panel members will solve the problem in your case. If your case involves homosexual conduct, or pornography, or cross-racial sexual relationships, or cross-racial violence, or a sexual-assault victim that has behaved in ways that are contrary to traditional sex role expectations, or [add a bias or belief here], then you need to explore that with your panel members.

(1) In a case involving pornography or non-traditional sexual behavior, you might ask: “Have you or someone you are close to (a college roommate, brother or sister, close friend) ever regularly looked at pornography? If someone else did, did your opinion of him or her change after you found out? Explain how it changed.”

(2) In a case involving cross-racial sexual relationships, you might ask: “If your son or daughter became romantically involved with someone from another race, how would that concern you? And then have a scale from “0” (not concern me at all) to “10” (concern me greatly).”

(3) You can ask similar questions about homosexuality (if your son or daughter told you he or she was gay, would that concern you, and then a scale). Or, the relationship between race and violence (Imagine that you are at home sleeping in bed with your wife, with the kids in their rooms, when you hear a window break and the unmistakable sounds of someone in your house. Now, what is the color of the skin of the person that you imagined was in your house?) Or, the validity of the mental health field as a real science (In your opinion, are psychology and psychiatry valid sciences or psycho-babble, with a scale). Or, whether they associate a stigma with seeking help for mental health problems (Have your or has someone close to you been to a mental health professional? If someone else, did your opinion of him or her change? How?)

(4) Take a look back at those questions. If they were asked in a group setting, what would the answers have been? Most likely, the socially acceptable answers. So, reduce these types of questions to something that is close to an anonymous survey (the written supplemental) and see if you can get accurate replies. You might even consider having a psychologist or psychiatrist help you to draft the questions. An added benefit of asking the questions via a supplemental questionnaire is that the members won’t know which party is seeking the information.

c. You might also look for other indicators of belief systems, like what media sources do they regularly visit [Fox News v. MSNBC] and what magazines, blogs, podcasts, etc., do they review. And you might look for the ways that they learn: “[O]ne of the most important things to look for is how the different jurors learn. Are they more creative or more logical? Would they rather look at a graph or read a book? What magazines to they read? What kind of entertainment do they enjoy? What kinds of games do they like to play?” James McElhaney, Making Limited Time for Voir Dire Count, A.B.A. J., Dec. 1998, at 66.

d. You should also ask about life experiences that might impact how the panel member will approach the problem. The military judge will ask some of these questions in front of everybody. For example, “Has anyone, or any member of your family, or anyone close to you personally ever been the victim of an offense similar to the offense charged?” In a case of child molestation, if a panel member was molested as a child but has not told anyone, do you think he or she will raise her hand and say that he or she has in front of all of these strangers? The better place to ask that question is in written voir dire.

e. As with anything else in trial work, the decision to submit an additional questionnaire needs to be goal oriented. If you don’t need to gather information via a supplemental questionnaire in this particular case, don’t.

f. And, you need to start working on this early. You need to identify these issues, structure arguments around them, and draft written voir dire questions during the trial preparation process – not on the day before trial. Generally, to do a written supplemental questionnaire, you will need to distribute the questionnaires a week or two before trial so that they can be sent to the members, the members can complete them, and then the questionnaires can be collected and reviewed by the attorneys. Using this process forces you to get your thoughts together well before trial.

5. Individual spoken voir dire.

a. If the panel member has responded in a way that causes you concern, you should consider challenging them based solely on their written response. If the military judge wants more, then bring the issue up in individual spoken voir dire – not in group spoken voir dire. Give the prospective panel member as much anonymity as you can.

6. Note how using written questionnaires and individual spoken voir dire greatly simplifies the process of voir dire. You don’t have to come up with complex charts and try to keep up with who’s hands go up when in response to what questions. You get the answers you need ahead of time, on paper, or later when just one person is on the stand. Voir dire can be pretty easy.

7. Again, only do individual spoken voir dire if you need to. If you don’t have a good reason for doing it, don’t do it.

8. The bottom line is: if you want to learn particular information about this panel member, use written voir dire to discover that information and then use individual spoken voir dire to follow-up the written voir dire, if needed. Don’t waste your group spoken voir dire time doing information gathering.

B. Education

1. The next goal is education – not education on your theory or theme of your case, but education on the counter-intuitive things the panel members will have to deal with.

2. Don’t educate on your theory.

a. When you theory-shop or theme-shop with your panel, you might think you are doing what lawyers should be doing, and other lawyers might be impressed, but your panel members will not be impressed. First, you risk coming across as a used-car salesman or as a lawyer trying to pull a lawyer-trick. According to James McElhaney, “Arguing your case before the jury panel members even know what it’s about triggers genuine sales resistance. So does trying to push the jurors into making commitments about how they are going to decide the case.” James McElhaney, Making Limited Time for Voir Dire Count, A.B.A. J. Dec. 1998, at 66-67.

b. And when you ask questions that you think are related to your case, like, “Would you agree that cops sometimes lie?”, you are insulting their intelligence. Of course, they know that cops sometimes lie. What they want to know is, did a cop lie in this case. And they want to wait until they hear the case to deal with that issue. They don’t want to feel like you are pressuring them to agree with you before they know the facts.

c. Look at these questions, for example:

(1) Do you believe that, under certain circumstances, eyewitness’ memory might not be accurate?

(2) How do you feel about witnesses who testify after receiving special treatment from the government?

(3) Do you think criminals might lie in order to get a better deal from the government?

(4) Do you agree that many words of the English language have various meanings?

(5) Do you agree that the mere presence at the scene of the crime does not establish guilt?

d. Each of these questions only has one answer. The panel members know that so they wonder why you are asking them and why you want them to state something so obvious. You might think you are doing something clever, but they are wondering why you are wasting their time and insulting their intelligence with questions like this.

e. As a good rule of thumb, if what you intend to ask is really an inference, then don’t ask the question. Note that for all the questions above, you can just argue that statement. Instead of asking those questions, do what the panel members want you to do: put on the evidence, and then argue the inferences. They will appreciate that.

3. So, if we aren’t going to theory-test and theme-test, what are we going to educate the panel members about?

4. Educate them on the counter-intuitive aspects of the law or of your case, and on generally-held beliefs that run counter to your case. This is how you will use group oral voir dire.

a. The judge is going to ask some perfunctory questions that address some of these issues, particularly system bias that runs against the accused. However, all these questions only illicit the socially acceptable response. There is only one to answer, “The accused has pled not guilty to all charges and specifications and is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt. Does anyone disagree with this rule of law?” No panel member is going to raise her hand while wearing her Army Service Uniform and say, “You know what, your honor? I cannot abide by that fundamental principle of American law.” The panel members will only respond with the socially acceptable answer, but you need to be aware that they will still likely solve the problem before them by relying on deeply-embedded generalizations about human behavior.

b. Note, your goal is to educate them about these beliefs, not to challenge them for cause. Some panel members will respond with answers that show that they have beliefs that run counter to your case. That is okay. You are going to make them aware of their beliefs so that they will be more receptive to counter-arguments and other belief structures. (You are not going to win most challenges for cause in this area, anyway, because the other party or the military judge will be able to ask questions that will rehabilitate the panel member).

c. As James McElhaney states, “A sermonette and long strings of questions will not change how anybody feels about basic issues. Even if they seem to go along with you, they will not reject their personal opinions. They will keep their personal opinions and reject you.” James McElhaney, Making Limited Time for Voir Dire Count, A.B.A. J., Dec. 1998, at 66.

d. We need to find a way to get them to be aware of their underlying beliefs so that they will not act on them. To do this, you want them to describe the 800-pound gorilla in the room (the belief they would otherwise use to solve the problem). And then you want to kill the gorilla.

e. Kill the gorilla. Don’t challenge the panel member.

f. You want them to gain insight on how the natural way that they might have solved the problem contains error. (For a good discussion of the neurological reasons why you explore these beliefs with the panel members, read Jonah Lehrer’s book, How We Decide).

g. For the defense counsel, there are several places in the law where the law runs counter to our intuitive problem-solving processes.

(1) For example, if the accused does not testify, we all draw negative inferences from that (he must have something to hide; if I were falsely accused, I would testify to set the record straight, so should he – he isn’t, so therefore he is guilty). Because normal people draw an inference that runs counter to constitutional protections (here, the right not to testify), the law says, “Don’t do that.”

(2) Same for the prohibition against drawing a negative inference if the defense does not put on a case (if evidence that said he didn’t do it were available, of course he would put it on – so it must not exist), or for the inference that just because the person is sitting at that table, they must have done something wrong (he has been through transmittals from commanders, an Art. 32, and the CG referral – all those people think he did something wrong, or else he would not be sitting at this table). Those last two instances implicate the presumption of innocence, and it turns out that 60-80% of jurors presume guilt.

h. From the judge that tells them not to use those generalizations does not mean that they will not use those lifelong-held generalizations to solve the problem. It just means that they will not talk out loud about their use of those generalizations.

i. How to kill the gorilla.

(1) In group voir dire, ask this simple question: “What is the first thing that comes to your mind when you hear that the accused will not testify?” Wait a few moments. There may be some silence. Eventually, someone will say, “He is guilty.” Now, don’t rush to challenge that person. Instead, say, “Thank you, SFC Jones.” And then ask, “Did anyone else think that?” Then say, “Thank you, [Names].” Then, have them describe the elephant. Ask, “Okay, MAJ Smith, why do you think that?” Continue asking questions until the 800-pound gorilla is fully described.

(2) Do not be judgmental with the answers. Instead, validate them. Say, “Thank you, MAJ Smith, I see your point” or variations on that.

(3) Then, ask, “Okay, why would someone who is innocent not take the stand?” Again, wait a few moments. There may be some silence. But then somebody will start finding the swords: “He might not be a good public speaker;” “His attorney might have told him not to;” “He have has some embarrassing skeletons in his closet;” “He might be afraid that a trained federal prosecutor will twist his words;” “He might be really nervous, particularly when this much is at stake.” (If no one comes up with a reason after several moments have gone by, then toss them a sword to get them talking.)

(4) The key is to have them list all the reasons that no one ever wants to testify. Then ask, “Does everyone now see why the military judge told you not to hold it against SGT Adams if he doesn’t testify? Please raise your hand if you can see that. Everyone raised their hand. Thank you.”

(5) For the presumption of innocence, you might ask, “What is the first thing you think when you see that the government has gone through all this trouble to bring the accused to trial?” The answer will probably be, “He did something wrong.” Then you respond with, “Why could it be that innocent people are brought into court?” Let them grab some swords. (“He was framed.” “He was the best of several suspects.” “He was in the wrong place at the wrong time.” “Someone misidentified him.”) If they can’t find any, ask them, “Well, have any of you ever been accused of doing something you didn’t do? Either recently, or even as a kid?” Have them describe the situations. Then ask, “Now, does everyone see the reason why we have this presumption of innocence? Please raise your hand if you see that. Everyone raised their hand. Thank you.”

(6) You killed the gorilla. Now, the panel members are much less likely to rely on the life-long held generalizations that work against your client. Note, you didn’t try to challenge anyone.

5. Again, you need to have a good reason for doing group spoken voir dire. If you do not have a good reason for doing it, don’t do it. You only need to do this when the bias might exist in your case. If your client is going to testify or put on evidence, then you don’t need to explore those system biases. Only have them describe the 800-pound gorillas that need killing.

6. For the trial counsel prosecuting an acquaintance sex assault case where the victim has behaved in ways prior to the assault that are outside of traditional sex-role expectations, you will run into two beliefs that will hurt your case, both of which shift blame to the victim: first, she asked for it, and second, she assumed the risk that this would happen.

a. If slightly more than one-third of your panel members has one of these beliefs (and research shows that these are commonly-held beliefs) and you don’t deal with these beliefs, then you may have an acquittal coming.

b. If your victim did something like drink with the accused ahead of time and then consensually engaged in kissing or oral sex, but then claims that the accused forced sexual intercourse on her, then some panel members might think that she asked for it. Essentially, she shares culpability for what happened next. If she had not done all those things, then this guy would not have lost control of his libido.

c. You can counter that by asking, “Are there circumstances where a woman can get a man so worked up that, even if she says no later, it is too late to say no?” Wait. Someone may raise their hand. Ask why they think that way. Have them describe the 800-pound gorilla and see if other people agree, using the same technique as above.

d. Then, give them a sword. Ask them, “Okay, well, if someone comes up to you and asks to borrow $50, and you say, ‘I won’t loan you $50, but I will loan you $25,’ can that person then go ahead and take the other $25? Who thinks no? Everybody raised their hands.”

e. If your victim placed herself in a risky situation, particularly by her own voluntary drinking, then you need to address this assumption of risk. You might first ask, “If a woman does X, Y, and Z, do you think she assumes some risk in what might happen to her?” Wait. You will probably get several people who agree. Ask why they think that way. Describe the 800-pound gorilla.

f. The next step is to see if they think that because she assumed some risk, the offender might be less culpable. Ask, “Well, if someone gets really drunk and stumbles out of a bar, they have placed themselves at risk of getting mugged. If someone does mug them, do we let the mugger go because the victim was drunk?” Or you might ask, “If a well-dressed business man goes to a ATM late at night in a crime-ridden part of town and gets mugged, do we let the mugger go because the victim was in dangerous situation?

7. The bottom line is: describe those generalizations (describe the 800-pound gorilla) and then have the panel members find reasons why those generalizations are dangerous (have them find some swords); then, have them kill the gorilla. Again, you need to have a good reason for doing group spoken voir dire. If you do not have a good reason for doing it, don’t do it.

C. Rapport and Persuasion

1. The third and fourth goals of voir dire, rapport and persuasion, are really byproducts of what you have accomplished in written and spoken voir dire. You have established rapport with the panel by not wasting their time; by asking questions that matter; and by showing them that you are prepared. Don’t ask test-like questions. Show an interest in what they are saying. Don’t ask judgmental questions, and don’t judge their answers. Validate all their responses.

2. And by addressing the biases and beliefs that run counter to your case, you have made them more open to the case you are about to present